Moussouris v. Microsoft Corporation

Filing 134

ORDER by Judge James L. Robart. The court DENIES Microsoft's 62 motion to dismiss, GRANTS Microsoft's 121 motion to establish that the potential liability period under Washington law begins on 9/16/2012, DENIES Plaintiffs' 122 motion to establish that the potential liability period under Washington law begins on 5/14/2011, and ORDERS that in subsequent proceedings, the parties treat 9/16/2012, as the operative date to define the putative class under the WLAD. (AD)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KATHERINE MOUSSOURIS, et al.,
Plaintiffs,

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MICROSOFT CORPORATION,
Defendant.

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ORDER

v.

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CASE NO. C15-1483JLR

I.

INTRODUCTION

Before the court are three motions. Defendant Microsoft Corporation moves to

17 dismiss Plaintiffs Katherine Moussouris, Holly Muenchow, and Dana Piermarini’s
18 (collectively, “Plaintiffs”) disparate impact claims (MTD (Dkt. # 62)) and moves to
19 establish that the potential liability period under Washington law begins on September
20 16, 2012 (Msft. SOL Mot. (Dkt. # 121)). Plaintiffs oppose both motions. (MTD Resp.
21 (Dkt. # 71); Plfs. SOL Resp. (Dkt. # 131).) In addition, Plaintiffs move to establish that
22 the potential liability period under Washington law begins on May 14, 2011. (Plfs. SOL
ORDER- 1

1 Mot. (Dkt. # 122).) Microsoft opposes Plaintiffs’ motion. 1 (Msft. SOL Resp. (Dkt.
2 # 132).) The court has considered the parties’ submissions, the appropriate portions of
3 the record, and the relevant law. 2 Considering itself fully advised, the court DENIES
4 Microsoft’s motion to dismiss, GRANTS Microsoft’s motion to establish that the
5 potential liability period under Washington law begins on September 16, 2012, and
6 DENIES Plaintiffs’ motion to establish that the potential liability period under
7 Washington law begins on May 14, 2011.
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II.

BACKGROUND

Plaintiffs are three current or former Microsoft employees who assert claims for

10 gender-based employment discrimination against female technical employees. (See
11 generally SAC (Dkt. # 55); see also Compl. (Dkt. # 1); FAC (Dkt. # 8).) On May 13,
12 2014, Ms. Moussouris filed a charge of discrimination with the Washington State Human
13 Rights Commission (“WSHRC”) and the Equal Employment Opportunity Commission
14 (“EEOC”) on behalf of herself and “other similarly situated female employees in
15 engineering and technical roles . . . at Microsoft.” (SAC ¶ 20, Ex. A (“EEOC Charge”) at
16 1-2, 5.) The discrimination charge eventually led to this lawsuit.
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Pursuant to the parties’ stipulation, the court ordered the parties to brief the liability
period issue by filing a joint statement of the issue followed by simultaneous opening briefs and
19 simultaneous response briefs. (8/22/16 Min. Order (Dkt. # 107) at 1-2.) The court construes
both opening briefs as motions. (See Msft. SOL Mot.; Plfs. SOL Mot.)

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Microsoft and Plaintiffs request oral argument on Microsoft’s motion to dismiss. (See
MTD; MTD Resp.) Microsoft also requests oral argument on the liability period issue (see Msft.
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SOL Mot.; Msft. SOL Resp.), whereas Plaintiffs do not (see Plfs. SOL Mot; Plfs. SOL Resp.)
The court concludes that oral argument would not be helpful to its disposition of these motions
22 and denies the requests for oral argument. See Local Rules W.D. Wash. LCR 7(b)(4).
ORDER- 2

1

In their first amended complaint, Plaintiffs, on behalf of a putative class, claimed

2 intentional discrimination and disparate impact discrimination in violation of Title VII of
3 the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Washington
4 Law Against Discrimination (“WLAD”), RCW 49.60.010 et seq. (FAC ¶¶ 71-100.) Ms.
5 Moussouris and Ms. Piermarini also alleged retaliation in violation of Title VII, and Ms.
6 Moussouris added a claim for retaliation in violation of the WLAD. (Id. ¶¶ 101-10.) Ms.
7 Moussouris and Ms. Piermarini brought these retaliation claims on behalf of themselves,
8 not on behalf of the putative class. (Id.)
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On March 7, 2016, the court dismissed Plaintiffs’ disparate impact claims, as

10 alleged in the first amended complaint, for failure to state a claim. (3/7/16 Order (Dkt.
11 # 52) at 20-23; see also FAC.) The court concluded that Plaintiffs “merely assert[ed] as
12 fact the causation element of Plaintiffs’ prima facie [disparate impact] claims,” and
13 therefore held that the court could not “plausibly infer that the allegedly offending
14 employment practices cause the alleged disparate impact.” (3/7/16 Order at 21, 23.)
15 However, the court granted Plaintiffs leave to amend their complaint (id. at 23), and on
16 April 6, 2016, Plaintiffs filed their second amended complaint (SAC). The second
17 amended complaint is now the operative complaint. (See Dkt.)
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Plaintiffs’ second amended complaint adds substantial detail to the allegations that

19 pertain to Plaintiffs’ disparate impact claims. 3 (See, e.g., SAC ¶¶ 24, 26-32, 41, 43-51,
20 53.) Plaintiffs assert that the disparate impact stems from the confluence of Microsoft’s
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Because the instant motions do not challenge the merits of Plaintiffs’ disparate

22 treatment and retaliation claims, the court omits those allegations from its factual summary.
ORDER- 3

1 stack ranking system of evaluating technical employees, the gender makeup of
2 Microsoft’s technical departments, and systemic biases. (Id. ¶¶ 26-41.) Because
3 Microsoft utilizes the performance evaluations to determine compensation and
4 promotions, Plaintiffs allege the impacts on themselves and the class they seek to
5 represent are far-reaching. (Id. ¶¶ 42-52.)
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Plaintiffs describe in detail the stack ranking process and how it allegedly

7 disparately impacts female technical employees. From 2011 to 2013, Microsoft used a
8 “companywide ‘stack ranking’ system for evaluating employee performance, which force
9 ranked employees from best to worst using a performance rating from 1 [best] to 5
10 [worst].” (Id. ¶ 27.) Microsoft applied a curve so that only a certain percentage of
11 employees in each “defined peer group” could attain each rating. (Id.) Microsoft applied
12 this curve by holding biannual “calibration meetings” at which managers assessed three
13 factors: the results an employee obtained, how the employee obtained those results, and
14 whether the employee had a history of continuing to develop his or her capabilities. (Id.
15 ¶¶ 29, 31.) Managers obtained this information by soliciting input from colleagues. (Id.
16 ¶ 30.) Although an employee could suggest colleagues to evaluate the employee’s work,
17 the managers retained full discretion to determine how much weight to assign to each
18 evaluation. (Id.)
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At the calibration meetings, managers “presented the merits of their own

20 employees and attempted to discredit the merits of the other [managers’] employees.”
21 (Id. ¶ 31.) Following a “week of such meetings,” the “calibration owner,” who oversaw
22 the managers, “resolve[d] the order of the stack for all employees discussed in a given
ORDER- 4

1 meeting.” (Id.) A “higher-level manager” then performed a final review of the
2 calibration owner’s rankings before finalizing the stacks. (Id. ¶ 32.)
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In 2014, Microsoft transitioned its performance evaluation procedure to a system

4 called Connect, which Plaintiffs characterize as similar to the prior stack ranking system.
5 (Id. ¶¶ 37-38.) Managers rate their employees on a sliding scale based on their “impact,”
6 which purports to measure “key individual accomplishments,” “contributions to the
7 success of others,” and “results that build on the work, ideas, or efforts of others.” (Id.
8 ¶ 39.) Managers then convene at “people discussions,” which resemble calibration
9 meetings. (Id. ¶ 40.) The subsequent steps in the Connect process mirror those in the
10 prior stack ranking process. (Id.)
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Plaintiffs allege these performance evaluation methods are “invalid” because they

12 “set arbitrary cutoffs among performers with similar performance” and are “not based on
13 valid and reliable performance measures.” (Id. ¶¶ 28-29; see also id. ¶¶ 38-39.)
14 Furthermore, Plaintiffs allege that the “vast majority (over 80%)” of the managers at the
15 calibration meetings and people discussions were men, and Plaintiffs posit that “female
16 technical employees were systematically undervalued compared to their male peers
17 because as a group they received, on average, lower rankings despite equal or better
18 performance.” (Id. ¶ 34; see also id. ¶ 24 (“In positions that Microsoft categorizes as
19 “Tech” in nature, only 16.9% of employees are female, while 83% are male.”).)
20 Plaintiffs then detail how this alleged disparity affected female technical employees’
21 compensation and promotions. (Id. ¶¶ 42-52.)
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ORDER- 5

1

Microsoft moves to dismiss Plaintiffs’ disparate impact claims. (MTD.) The

2 parties also dispute how far back the statute of limitations reaches, and the determination
3 of that issue will impact the putative class definition. (Plfs. SOL Mot.; Msft. SOL Mot.)
4 Those issues are now before the court.
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III.

ANALYSIS

6 A.

Microsoft’s Motion to Dismiss

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Microsoft contends that the second amended complaint fails to adequately plead

8 disparate impact claims because (1) it insufficiently identifies the employment practice or
9 practices that allegedly disparately impact women (MTD at 3-6), and (2) like the first
10 amended complaint, Plaintiffs fail to plausibly allege causation (id. at 6-12). The court
11 addresses each of these contentions in turn.
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1. Legal Standard

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When considering a motion to dismiss under Federal Rule of Civil Procedure

14 12(b)(6), the court construes the complaint in the light most favorable to the nonmoving
15 party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir.
16 2005). The court must accept all well-pleaded facts as true and draw all reasonable
17 inferences in favor of the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135
18 F.3d 658, 661 (9th Cir. 1998). “To survive a motion to dismiss, a complaint must contain
19 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
20 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
21 550 U.S. 544, 570 (2007)); see Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th
22 Cir. 2010). “A claim has facial plausibility when the plaintiff pleads factual content that
ORDER- 6

1 allows the court to draw the reasonable inference that the defendant is liable for the
2 misconduct alleged.” Iqbal, 556 U.S. at 678. The court, however, need not accept as true
3 a legal conclusion presented as a factual allegation. Id. Finally, dismissal under Rule
4 12(b)(6) can be based on the lack of a cognizable legal theory or the absence of sufficient
5 facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901
6 F.2d 696, 699 (9th Cir. 1990).
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“To establish a prima facie case of disparate impact under Title VII, the plaintiffs

8 must: (1) show a significant disparate impact on a protected class or group; (2) identify
9 the specific employment practices or selection criteria at issue; and (3) show a causal
10 relationship between the challenged practices or criteria and the disparate impact.” 4
11 Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1190 (9th Cir. 2002). However, at the
12 pleading stage, “[t]he burden of establishing a prima facie case is not onerous. . . . The
13 plaintiff must only make allegations sufficient to raise an inference or presumption of
14 discrimination.” Gilley v. JPMorgan Chase Bank, N.A., No. 12CV1774 AJB (JMA),
15 2012 WL 10424926, at *3 (S.D. Cal. Oct. 12, 2012) (citing Tex. Dep’t of Cmty. Affairs v.
16 Burdine, 450 U.S. 248, 254 (1981)).
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2. Specific Employment Practice

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“The plaintiff must begin by identifying the specific employment practice that is

19 challenged.” Watson v. Fort Worth Bank and Tr., 487 U.S. 977, 994 (1988) (plurality
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Because the WLAD is patterned after Title VII, Washington courts have applied the
same framework to disparate impact claims under the WLAD as applies under federal law. See
Oliver v. Pac. Nw. Bell Tel. Co., 724 P.2d 1003, 1005 (Wash. 1986). Accordingly, the court’s
22 analysis in this section applies to Plaintiffs’ state and federal disparate impact claims.

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ORDER- 7

1 opinion), superseded by statute on other grounds, 42 U.S.C. § 2000e-2(k). 5 Plaintiffs
2 challenge Microsoft’s “performance review practice.” (MTD Resp. at 3.) According to
3 Plaintiffs, this stack-ranking process not only assesses performance but also affects pay
4 and promotion decisions and causes a far-reaching disparate impact. (Id.) Plaintiffs cite
5 allegations in the amended complaint that detail Microsoft’s performance review practice
6 (id. at 4-5), and Plaintiffs therefore contend that they have stated a plausible and
7 sufficiently specific claim for disparate impact (id. at 5-10).
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Microsoft’s argues that Plaintiffs fail to challenge a specific employment practice

9 causing a disparate impact and instead allege a “laundry list criticizing myriad aspects of”
10 Microsoft’s performance, compensation, and promotion evaluation practices. (MTD
11 Reply (Dkt. # 74) at 4.) To the contrary, the allegations appear somewhat unspecific only
12 because the second amended complaint explains not just how Microsoft’s performance
13 evaluation system functions (FAC ¶¶ 27-33, 37, 39-40), but also how that system
14 allegedly disparately impacts women’s performance evaluations (id. ¶¶ 34-36, 38, 41),
15 compensation (id. ¶¶ 43-47), and promotion (id. ¶¶ 48-52); see also 42 U.S.C.
16 § 2000e-2(k)(1)(B)(i) (“With respect to demonstrating that a particular employment
17 practice causes a disparate impact . . . , the complaining party shall demonstrate that each
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See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989), superseded by statute
20 on other grounds, 42 U.S.C. § 2000e-2(k); see also Smith v. Jackson, 544 U.S. 228, 241 (2005)
(“[T]he employee is responsible for isolating and identifying the specific employment practices
21 that are allegedly responsible for any observed statistical disparities.” (internal quotes omitted));
Am. Fed’n of State, Cty., & Mun. Emps., AFL-CIO (AFSCME) v. Washington, 770 F.2d 1401,
1405 (9th Cir. 1985) (“Disparate impact analysis is confined to cases that challenge a specific,
22 clearly delineated employment practice applied at a single point . . . .”).
ORDER- 8

1 particular challenged employment practice causes a disparate impact, except that if the
2 complaining party can demonstrate to the court that the elements of a respondent’s
3 decisionmaking process are not capable of separation for analysis, the decisionmaking
4 process may be analyzed as one employment practice.”). The detail that Plaintiffs have
5 added in the second amended complaint enhances—rather than detracts from—the
6 specificity with which Plaintiffs identify the challenged practice. 6 In other words, the
7 details in Plaintiffs’ allegations make it less likely, not more likely, that Microsoft will be
8 held “liable for the myriad of innocent causes that may lead to statistical imbalances” in
9 the workforce. Smith, 544 U.S. at 242 (internal quotations omitted).
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Accordingly, the court concludes that Plaintiffs sufficiently identify a challenged

11 employment practice and declines to dismiss Plaintiffs’ disparate impact claims on that
12 basis.
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3. Causation

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“A plaintiff who fails to allege facts at the pleading stage . . . demonstrating a

15 causal connection cannot make out a prima facie case of disparate impact.” Texas Dep’t
16 of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., --- U.S. ---, 135 S. Ct. 2507,
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In its March 7, 2016, order, the court “focuse[d] its analysis of Plaintiffs’ disparate
impact claim on Microsoft’s performance evaluation method” precisely because that method was
“the only ‘specific employment practice[]’ about which Plaintiffs allege[d] meaningful factual
detail.” (3/7/16 Order at 21 n.8 (second alteration in original) (quoting Hemmings, 285 F.3d at
1190).) Plaintiffs have not omitted any of that “meaningful factual detail” from the second
amended complaint. (Compare FAC with SAC.) Rather, Plaintiffs added the allegations
regarding causation in an effort to remedy the pleading deficiencies identified in the court’s
order. (See 3/7/16 Order at 22-23 (“Plaintiffs’ nonconclusory allegations do not give rise to a
plausible inference that one or more of Microsoft’s policies caused a disparate impact upon
women.”); compare FAC ¶¶ 26-29, 31, 34, 45-46, with SAC ¶¶ 34-36, 38, 41, 43-52.)
ORDER- 9

1 2523 (2015). At the pleading stage, a plaintiff may satisfy this “robust causality
2 requirement,” id., by alleging nonconclusory facts that, accepted as true, support a
3 reasonable inference that the challenged practice caused a disparate impact, Iqbal, 556
4 U.S. at 678. 7
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Microsoft contends that Plaintiffs fail to satisfy this pleading requirement

6 regarding causation. (MTD at 6-12.) Plaintiffs most succinctly summarize their response
7 in the following sentence:
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It is more than plausible that a performance review system which forces a
distribution on a curve regardless of performance, allows managers to
handpick those providing input to employee performance, includes
unreliable criteria to measure performance, does not instruct managers on
the weight to be afforded to particular performance criteria nor calibrates
[sic] all managers to a uniform application of said criteria, allows
performance scores to be altered by subsequent managers with no actual
knowledge of an employee’s performance but with only a mandate to meet
a particular forced distribution, operates in an environment overwhelmingly
dominated by men, and under which the Plaintiffs personally and women
they observed were harmed, would cause a disparate impact on women.”

14 (MTD Resp. at 14.) The court agrees that the characteristics of the performance review
15 system described in the second amended complaint “nudge” Plaintiffs’ claims—
16 particularly the disputed element of causation—“across the line from conceivable to
17 plausible.” Twombly, 550 U.S. at 570.
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See also 42 U.S.C. § 2000e-2(k)(1)(A)(i) (“An unlawful employment practice based on
disparate impact is established under this subchapter only if . . . a complaining party
21 demonstrates that a respondent uses a particular employment practice that causes a disparate
impact on the basis of race, color, religion, sex, or national origin and the respondent fails to
demonstrate that the challenged practice is job related for the position in question and consistent
22 with business necessity.”).

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ORDER- 10

1

Plaintiffs’ disparate impact claim relies on the theory that Microsoft’s stack

2 ranking process led to arbitrary differentiations between technical employees’ evaluations
3 and that “such inaccurate performance measurements systematically disadvantage
4 women, particularly where women work in male-dominated roles and where evaluators
5 are men.” 8 (SAC ¶ 35; see also id. ¶¶ 24, 34 (alleging that over 80 percent of the
6 managers in Microsoft’s calibration meetings were men).) Plaintiffs allege that they have
7 witnessed and experienced this impact firsthand. (Id. ¶¶ 67, 69, 75, 79-80, 85.) In
8 addition, Plaintiffs point to several statistics and studies that empirically support their
9 theory of causation. 9 (See SAC ¶ 35 n.3.)
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Microsoft argues that Plaintiffs’ allegations “must set forth sufficient facts to

11 ‘tend[] to exclude the possibility that [ ] alternative explanation[s]’ for the alleged
12 percentages—for example, a difference in interest or qualifications among candidates—
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Plaintiffs allege that the stack ranking system also causes a disparate impact in
compensation and promotion because the flawed performance evaluations form the basis of
15 compensation and promotion decisions. (SAC ¶¶ 43, 48.) Microsoft does not challenge the
sufficiency of these allegations. (See generally MTD.) Instead, Microsoft challenges whether
the premise of these allegations—that the stack ranking process causes a disparate impact on
16 performance evaluations—is sufficiently pleaded. (Id. at 6-12.) Accordingly, the court focuses
its analysis herein on whether Plaintiffs adequately allege that premise.

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For instance, researchers conducting a meta-analysis of research on evaluations of

18 female leaders concluded that women were disproportionately devalued under certain
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circumstances, such as when women led or managed “in stereotypically masculine styles,”
women “occupied male-dominated roles,” and “the evaluators were men.” Alice H. Eagly, et al.,
Gender and the Evaluation of Leaders: A Meta-Analysis, 111 PSYCHOL. BULL. 3, 18 (1992),
(available at Dkt. # 63-3); see also Karen S. Lyness & Madeline E. Heilman, When Fit is
Fundamental: Performance Evaluations and Promotions of Upper-Level Female and Male
Managers, 91 J. OF APPLIED PSYCHOL. 777 (2006), (available at Dkt. # 63-4). Microsoft
correctly argues that these studies imperfectly apply to Plaintiffs’ allegations in this case (MTD
at 10-12; MTD Reply at 10-11), but the studies nonetheless support the reasonableness of the
inference that Plaintiffs ask the court to draw regarding causation.
ORDER- 11

1 ‘[are] true in order to render [their] allegations plausible within the meaning of Iqbal and
2 Twombly.’” (MTD Reply at 9 (quoting In re Century Aluminum Co., 729 F.3d 1104,
3 1108 (9th Cir. 2013)) (alterations in original).) Common sense tends to exclude the
4 possibility that Plaintiffs lacked interest in being positively evaluated, paid more, or
5 promoted. See Iqbal, 556 U.S. at 679. Furthermore, Plaintiffs allege that they and
6 similarly situated women performed as well as or better than their male peers but
7 received inferior performance evaluations. (FAC ¶¶ 62, 74-75, 79-81.) Accordingly, the
8 court concludes that, at a minimum, the parties have set forth multiple plausible causes of
9 the alleged disparate impact on female technical employees at Microsoft. See Starr v.
10 Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“If there are two alternative explanations, one
11 advanced by defendant and the other advanced by plaintiff, both of which are plausible,
12 plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).”); see also In re
13 Century Aluminum Co., 729 F.3d at 1108.
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Based on the foregoing analysis, the court concludes that Plaintiffs have stated

15 plausible disparate impact claims and denies Microsoft’s motion to dismiss those claims.
16 B.

Liability Period under the WLAD

17

The parties agree that the WLAD imposes a three-year statute of limitations (see

18 Plfs. SOL Mot. at 1; Msft. SOL Mot. at 1), but they dispute how that statute of limitations
19 applies. Plaintiffs argue that Ms. Moussouris tolled the statute of limitations when she
20 filed her EEOC charge on May 14, 2014. (Plfs. SOL Mot. at 1; SAC ¶ 20; EEOC
21 Charge.) Plaintiffs therefore contend that their putative class can date back to May 14,
22 2011, for claims under the WLAD. (Plfs. SOL Mot. at 1; SAC ¶ 53.) Microsoft argues
ORDER- 12

1 that Ms. Moussouris tolled the statute of limitations for the putative class not upon filing
2 her EEOC charge, but when she filed the original complaint on September 16, 2015.
3 (Msft. SOL Mot. at 1; Compl. at 1.) Pursuant to the court’s order (8/22/16 Min. Order),
4 Plaintiffs and Microsoft have submitted simultaneous motions and simultaneous
5 responses so the court can determine this issue.
6

The only argument that Plaintiffs advance in support of their position is that the

7 court should equitably toll the statute of limitations as of the date Ms. Moussouris filed
8 her EEOC charge. 10 (See Plfs. SOL Mot. at 3-9; see also Plfs. SOL Resp. at 1-8.)
9 “Equitable tolling is appropriate when consistent with both the purpose of the statute
10 providing the cause of action and the purpose of the statute of limitations.” Millay v.
11 Cam, 955 P.2d 791, 797 (Wash. 1998). The Washington Supreme Court has held that
12 “there may be cases in which the filing deadline for a discrimination action may be
13 equitably tolled.” 11 Douchette v. Bethel School Dist. No. 403, 818 P.2d 1362, 1364
14 (Wash. 1991). However, “[c]ourts typically permit equitable tolling to occur only
15 sparingly.” State v. Robinson, 17 P.3d 653, 659 (Wash. Ct. App. 2001) (internal
16 quotations omitted). The proponent of equitable tolling bears the burden of proof on the
17 issue. See Benyaminov v. City of Bellevue, 183 P.3d 1127, 1133 (Wash. Ct. App. 2008).
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The court thus treats as unrebutted the principal argument in Microsoft’s motion—that
20 absent equitable tolling, “Plaintiffs’ WLAD claims are timely only three years before the date on
which their Complaint containing those claims was filed.” (Msft. SOL Mot. at 4.)

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“Federal courts . . . apply a forum state’s law regarding tolling, including equitable
tolling when not inconsistent with federal law.” Fink v. Shedler, 192 F.3d 911, 914 (9th Cir.
22 1999).
ORDER- 13

1 Where, as here, none of the controlling facts are in dispute, a district court may decide the
2 question of equitable tolling as a matter of law. See Aronsen v. Crown Zellerbach, 662
3 F.2d 584, 595 (9th Cir. 1981).
4

As a threshold matter, Plaintiffs frame the majority of their argument from Ms.

5 Moussouris’s perspective because she filed the EEOC charge. 12 That focus is misplaced.
6 Ms. Moussouris’s WLAD claims are timely irrespective of whether the court equitably
7 tolls the statute of limitations. Although Ms. Moussouris, as a putative class
8 representative, has a collateral interest in pursuing the claims of the putative class, 13 the
9 individuals with a direct interest in equitable tolling are those that would be in the class
10 Plaintiffs propose (SAC ¶ 53) but would not be in the class as Microsoft seeks to narrow
11 it (see Msft. SOL Mot. at 1). In other words, the court analyzes equitable tolling from the
12 perspective of female technical employees who left Microsoft between May 14, 2011,
13 and September 16, 2012, but otherwise meet Plaintiffs’ proposed class definition (the
14 “would-be class members”). (See SAC ¶ 53.)
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(See, e.g., Plfs. SOL Mot. at 5 (citing Salgado v. Atl. Richfield Co., 823 F.2d 1322,

17 1326 (9th Cir. 1987)) (“Here, Plaintiff Moussouris not only had to await the EEOC’s

investigation of individual claims before filing her federal claims, but also had to await

18 completion of both the agency’s and her own investigation of class claims, evidence of which is
difficult to obtain at the outset of a discrimination case. Thus, the EEOC’s investigation was
19 even more important to Ms. Moussouris’s eventual civil Class Action Complaint than it was to
the plaintiff bringing individual claims in Salgado.”).)

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See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980) (holding that a
putative class representative’s claim does not become moot “upon expiration of the named
21
plaintiff’s substantive claim” because “[t]he proposed representative retains a ‘personal stake’ in
obtaining class certification sufficient to assure that Art. III values are not undermined”); Chen v.
22 Allstate Ins. Co., 819 F.3d 1136, 1147 (9th Cir. 2016).
ORDER- 14

1

Plaintiffs must prove that equitable tolling applies. See Benyaminov, 183 P.3d at

2 1133. The record contains no evidence that any would-be class members relied on Ms.
3 Moussouris’s EEOC charge. Indeed, given that the would-be class members allegedly
4 experienced discrimination between May 2011 and September 2012 but took no action to
5 assert claims before May 2014, it is unreasonable to infer that they would have pursued
6 claims on their own behalf but for Ms. Moussouris’s EEOC charge. The record also
7 contains no evidence implying that the would-be class members faced any hindrance to
8 separately filing their own claims. The court therefore cannot conclude that the would-be
9 class members exercised “reasonable diligence” in pursuing their claims. Benyaminov v.
10 City of Bellevue, 183 P.3d 1127, 1130 (Wash. Ct. App. 2008); see also Douchette, 818
11 P.2d at 1365. Furthermore, there is no evidence that Microsoft acted in bad faith toward,
12 deceived, or falsely assured the would-be class members. See Douchette, 818 P.2d at
13 1365 (listing the “claimant’s reliance on deception or false assurances on the part of the
14 employer” as one factor in assessing equitable tolling). 14
15

On the other hand, Plaintiffs present evidence that they contend supports their

16 argument that the WSHRC misleads discrimination victims in a manner that warrants
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Bad faith is a relevant but not a necessary factor for purposes of demonstrating an
entitlement to equitable tolling. Compare Millay, 955 P.2d at 797 (“The predicates for equitable
20 tolling are bad faith, deception, or false assurances by the defendant and the exercise of diligence
by the plaintiff.”), with Putz v. Golden, 847 F. Supp. 2d 1273, 1284 (W.D. Wash. 2012) (quoting
21 In re Carter, 263 P.3d 1241, 1247 (Wash. 2011)) (“[T]he Washington Supreme Court expressly
recognized that the availability of equitable tolling of the statute of limitations is not limited to
circumstances ‘where one of the predicates of bad faith, deception, and false assurances [i]s
22 shown.’” (second alteration in original)).

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ORDER- 15

1 equitable tolling. (Plfs. SOL Mot. at 6-7; Klein Decl. (Dkt. # 123) 15 ¶ 8, Ex. C
2 (“WSHRC Homepage”)); see Douchette, 818 P.2d at 1365 (adding that one factor to
3 consider when deciding whether to equitably toll the statute of limitations is the
4 “claimant’s reliance on authoritative statements made by the administrative agency that
5 misled [the] claimant about the nature of her rights”). Specifically, Plaintiffs argue that
6 the WSHRC’s website directs employment discrimination victims to file a charge “with
7 WSHRC within six months, from the date of the alleged violation, in order to protect
8 [the victim’s] rights.” (See WSHRC Homepage at 1 (emphasis in original).) This
9 language could mislead a reader to think that filing with WSHRC within six months is
10 both necessary and sufficient to protect one’s rights. The more natural reading, however,
11 is that filing with the WSHRC within six months of the alleged violation is necessary—
12 but not necessarily sufficient—to protect one’s rights. Because of this interpretation and
13 the absence of evidence that any would-be class member actually detrimentally relied on
14 the WSHRC homepage, the court finds this argument unpersuasive.
15

Plaintiffs also argue that by indicating the classwide nature of her allegations in

16 the EEOC charge, Ms. Moussouris put Microsoft on notice of the allegations and
17 therefore Microsoft “will not be prejudiced by” equitable tolling. (Plfs. SOL Resp. at 4;
18 see also Plfs. SOL Mot. at 3-4.) Microsoft does not dispute whether it had notice of the
19 claims during the EEOC proceedings, but that notice does not fully eliminate prejudice
20
21

15

Microsoft moves to strike the Klein Declaration. (Msft. SOL Resp. at 5-6.) Because
the Klein Declaration does not alter the court’s conclusion herein, the court denies Microsoft’s
22 motion to strike as moot.
ORDER- 16

1 because “[w]itnesses may no longer be available, memories have faded, and relevant
2 evidence may no longer be obtainable.” Douchette, 818 P.3d at 1366. The EEOC charge
3 may have mitigated the prejudice to Microsoft, but it did so in a minimal way that does
4 not justify equitable tolling—especially given Plaintiffs’ dearth of other persuasive
5 reasons.
6

In sum, the undisputed facts demonstrate this case does not warrant equitable

7 tolling. 16 Moreover, even if one or more would-be class members can make an
8 individualized showing that justifies equitable tolling of her claims, the requisite
9 individualized inquiry runs counter to Federal Rule of Civil Procedure 23 and renders the
10 claims unsuited to adjudication in a class proceeding. See Fed. R. Civ. P. 23(a)(2);
11 Wal-Mart Stores v. Dukes, 564 U.S. 338, 349-50 (2011). Therefore, the court concludes
12 this is not one of the rare cases in which equitable tolling is appropriate and that
13 Plaintiffs’ proposed class definition is overbroad. The court accordingly grants
14 Microsoft’s motion regarding the potential liability period, denies Plaintiffs’ motion on
15 that subject, and orders that in subsequent proceedings, the parties treat September 16,
16
16

Plaintiffs also make a more abstract argument that tolling the statute of limitations for

17 the would-be class members upon the filing of an EEOC charge would effectuate the purposes of
the WLAD. (Plfs. SOL Mot. at 3-6.) Plaintiffs correctly identify the liberal construction that

18 Washington courts apply to the WLAD in order to further its “policy of the highest order”:
19
20
21
22

“deter[ring] and eradicat[ing] discrimination in Washington.” Fraternal Order of Eagles, Tenino
Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 59 P.3d 655, 667 (Wash. 2002); see
also RCW 49.60.020. However, the WLAD’s liberally construed substantive protections operate
in conjunction with its statute of limitations. Statutes of limitations serve the “valuable
purpose[s]” of “promoting certainty and finality” and “protecting against stale claims.” Rental
Hous. Ass’n of Puget Sound v. City of Des Moines, 199 P.3d 393, 400 (Wash. 2009). The court
is not persuaded that this case warrants subjugating the text of and “valuable” policy embodied
in the WLAD’s statute of limitations in deference to the policy embodied in its substantive
protections. Id.
ORDER- 17

1 2012, as the operative date to define the putative class under the WLAD. (See SAC
2 ¶ 53.)
3
4

IV.

CONCLUSION

Based on the foregoing analysis, the court DENIES Microsoft’s motion to dismiss

5 (Dkt. # 62), GRANTS Microsoft’s motion to establish that the potential liability period
6 under Washington law begins on September 16, 2012 (Dkt. # 121), DENIES Plaintiffs’
7 motion to establish that the potential liability period under Washington law begins on
8 May 14, 2011 (Dkt. # 122), and ORDERS that in subsequent proceedings, the parties
9 treat September 16, 2012, as the operative date to define the putative class under the
10 WLAD.
11

Dated this 14th day of October, 2016.

12

14

A

15

JAMES L. ROBART
United States District Judge

13

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19
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21
22
ORDER- 18