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Good brief by Microsoft

This is copypasta of what a winning summary judgment motion looks like.

 

It is intended to be a seed database for training algorithms to detect ‘successful’ features of litigation paperwork.  It is intended to be machine readable less than human readable.  The original is accessible via this link: here.

 

 

FILED

12 SEP 19 PM 4:17

 

KING COUNTY SUPERIOR COURT CLERK

E-FILED

2                                                                                                                                                   CASE NUMBER: 11-2-18076-0 SEA

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IO                                                                                                                      THE HONORABLE BILL BOWMAN

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  • Hearing Date: October 19, 2012
  • Hearin g T ime: 1:30 m.
  • With Oral Argument

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  • SUPERIOR COURT OF THE STATE OF WASHINGTON
  • FOR KING COUNTY

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21        KIRSTEN WILEY, an individual,

22                                                                                                             No. 11-2-18076-0 SEA

  • Plaintiff,
  • MICROSOFT’S MOTION FOR SUMMARY

 

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  • MICROSOFT CORPORATION, a
  • Washington corporation,

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30                                                        Defendant.

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MICROSOFT’S MOTION FOR SUMMARY JUDGMENT

JUDGMENT

 

NOTED FOR MOTION CALENDAR

October 19, 2012, at 1:30 p.rn.

WITH ORAL ARGUMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Perkins Coie LLP

120 1 Third Avenue, Suite 4900

Seattle, WA 98101-3099

 

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  •  
  • II.

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RELIEF REQUESTED……………………………………………………………………………………. l

STATEMENT OF FACTS……………………………………………………………………………… 2

 

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  •  

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Plaintiffs Employment with Microsoft………………………………………………….. 2

Microsoft’s Public Rela tions Organi zation………………………………………………. 2

Discuss io n of Feedback………………………………………………………………………… 4

Plaintiff s Post-Feedback Complaint……………………………………………………… 5

Offer of Coaching and Suppo1t…………………………………………………………….. 6

Plaintiff Misa ppropriates Confident ial Doc uments………………………………….. 7

Plaintiff Files Lawsuit…………………………………………………………………………. 7

 

  • ill .

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20           IV.

2 1           V.

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STATEMENT OF ISSUES…………………………………………………………………………….. 7

EVIDENCE RELIED UPON………………………………………………………………………….. 8

AUTHORITY………………………………………………………………………………………………… 8

 

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Summary Judgment Standard……………………………………………………………….. 8

Plaintiff s Gender Discrimination Claims Fail as a Matter of Law……………… 8

  1. Framework for Dis parate Treatment Claim s……………………………….. 8
    1. Plaintiff s Failure-to-Promote Claim Fails as a Matter

ofLaw………………………………………………………………………… 10

 

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33                                                        d.

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35                                                        e.

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Plaintiffs Unequal Pay  Claim Fails as a Matter  of Law……… 11

Plaintiff Has No Other Evidence of Gender Bias………………. 14

Microsoft’s Legitimate Non-Discriminatory Reason for Addressing  Plaintiff s Performance Issues    16

Pla intiff Ha s No Ev ide nce of Pretext……………………………… 17

 

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Plaintiff s Retaliation Claim Fails…………………………………………………………… 18

Plaintiffs Contract-Based Claim Should Be Di s misse d………………… 18

 

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44                      C.

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46                                                        d.

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Requireme nts for Thomp son Claim………………………………….. 18

The Promine nt Disclaimer in Microsoft’s Employee

Handbook Bars Plaintiff s Thompson Claim……………………… 19

Plaintiffs Cannot Rely On An Admittedly Unk nown

Policy…………………………………………………………………………. 20

There is No Patent “Policy” Prohibiting PR Interviews……… 21

 

MICROSOFT’S MOTION FOR SUMMARY JUDGMENT – i

Perkins Coie LLP

120 1 Third Avenue, Suite 4900 Seattle , WA 98101-3099

 

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5           VI.

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8           VII.

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(continued)

MICROSOFf’S COUNTERCLAIM……………………………………………………………….. 23

  1. Plaintiff Violated Her Non-Disclosu re Agree me nt………………………………….. 23

CONCLUSION……………………………………………………………………………………………. 24

 

MICROSOFf ‘S MOTION FOR SUMMARY JUDGMENT – ii

 

Perkin s Coie LLP

120 1 Third Avenue, Sui te 4900

Seattle, WA 98101-3099

 

 

 

 

 

 

 

 

I.                RELIEF REQUESTED

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2                          Pursuant to Civil Rule 56, defendant Microsoft Corporation moves the Court for

4    summary judgment (a) dis missing plaintiff IGrste n Wiley’s Complaint in its entire ty on the

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6           grounds that no genuine issue of material fact exists as to any of Plaintiff s claims against

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8           Microsoft and all fail as a matter of law, and (b) entering judgment in Microsoft’s favor with

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IO           respect to its counte rclaims for Pla intiff s breach of her emplo yment agreeme nt.

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12                     First, with respect to her gender discrimination cla im , Plaintiff has no evidence

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13           suggesti ng discrimination in pay or promotional opportunities. She identifies no similarly­

15           situated male employees who received more favora ble treatment. Second, she identified no

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17           statutorily-protected activity in which she engaged- in e ither her Complaint or her

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19           deposition-for which she was “retaliated” against and thus her claim fails. Finally, her

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2 1          Thompson employee-handbook claim fails. She identifies no specific promise on which she

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  • relied. Even if she had, Microsoft inform s employees that its policies con tain only gene ral
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  • guidelines and form no legal obligations, and her employment agreement (“Agreement”)

26           states that it is the “entire agreement” between the parties. Microsoft is entitled to summary

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28           judgment and dismissal of her Complaint in its entirety.

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30                          Microsoft is, si milarly, entitled to summary judgment on its counterclaims aga inst

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32           Plaintiff for her breach of her Agreement with Microsoft. Plaintiff candidly conceded

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  • during her deposition that she misappropriated confidential Microsoft documents (including
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  • attorney-client privileged material), printed them for her own use against Microsoft in this

37           lawsuit and delivered them to her lawye r. Suc h “self-help” di sco very has been rout ine ly

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39           condemned by comts from across the country. It is, as numerous co urts have held, a clear

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41           breach of confidentiality obligations. Moreover, Plaintiff breached her Agreement by

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43           asserting her impl ied contract claim, notwithstanding her ackno wledgment the Agreement

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  • constituted the “entire agreement” between the parties and could be modified only by a
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  • writing signed by both parti Summary judgment in Microsoft’s favor is appropriate.

 

 

 

MICROSOFf ‘S MOTION FOR SUMMARY JUDGMENT- I

Perkin s Co ie LLP

1201 Third Avenue, Suite 4900 Seattle , WA 98101-3099

 

 
  

 

 

 

 

 

 

II .        STATEMENT OF FACTS

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3               A.        Plaintifrs Employment with Microsoft

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  • Plaintiff is an at-will employee who started at Microsoft in 1992 in an entry-level

6           position as Associate Inside Sales Representative. Declaration of Kevin J. Hamilton

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8           (“Hamilton Deel.”), Ex. A (Wile y Dep. 29:4-18, 33:1-2, 38:13-22, 39:14-40:19), Ex. B.

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IO           Although she had only a liberal arts degree with no background in public relations, she

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12           gained expedence on the job. She was promoted multiple times, most recently to a Level 66

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  • Marketing and Communications (“MarComm”) Direc to r pos itio Since 2003, she has
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  • reported to Kevin Schofield, the General Manager of US Microsoft Research (“MSR”)

17           Strategy Management. Id., Ex. A (Wiley Dep. 30:23-31:8, 40:20-42:2, 96:3-10), Ex. B.

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19           Because of her exposure to highly confidential research and propdetary information,

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2 1           Plaintiff signed a confidentiality agreeme nt upon hire, and anot her dur ing the co urse of her

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23           employment. Id. Ex. A (Wiley Dep. 86:24-88:14), Ex. C.

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  • Plaintiff has been a highly compensated. Her most recent annual salary was
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  • $168,412, a bonus of $15,868 and an award of Microsoft stock that vests over time subject

28           to certain co nd itions. Id., Ex. A (Wiley Dep. 68:5-70:18), Ex. D. She received pay

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30           increases almost every year, as well as a bonus and stock award. Id., Ex. A (Wiley Dep.

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32           68:5-70:18, 70:21-25, 71:1-18), Ex. D.

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34           B.        Microsoft’s Public Relations Organization

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36                          As MarComm Director, Plaintiff was responsible for helping shape the external

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  • image of She provided marketing and PR se rvices to business partners within MSR
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  • as they defined marketing and PR plans and generated news coverage and publicity to

41           support their goals. Id., Ex. A (Wiley Dep. 96:23-100:5 ). Plaintiff also directed some of the

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43           work of Microsoft’s outside PR agency, Waggener Edstrom (“WagEd” ). Id. (Wiley Dep.

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45           103:21-104:11, 116:4-12). She managed WagEd’s discussions with reporters on behalf o f

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47    MSR, approvingor denying req ues ts for interviews and news stories and review ing press

 

2           Id. (Wiley Dep. 96:23-100:5, 101:10-16, 103:21-104:11).

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4          Plaintiff s job required her to communicate effectively and have effective working

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6           relationships with others, including employees she supervised, her “clients” within MSR,

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8           employees at WagEd, and business partners fro m other organjzations within Microsoft. Id.

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IO           (Wiley Dep. 116:21-117:9, 119:9-15). Plaintiff s performance reviews and other feedback in

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11           the last few years have contained both positive comments and constructive cli ticism on the

13           need to improve her co mmunications with others. Id. (Wiley Dep. 122:10-17, 128:25-

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15           132:20, 204:14-205:2); Declaration of Kevin Schofield (“Schofie ld Deel.”), [ 5.

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17                          In 2009, Craig Mundie, Microsoft’s Research and Strategy Officer, directed that the

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19           Company’s Corporate Public Relations group (“Corporate Communications”), work more

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2 1        closely with P laintiff and others at MSR with respect to marketing and PR efforts within

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22           MSR. Hamilton Deel., Ex. A (Wiley Dep. 96:11-22, 98:25-99:11, 141:20-142:4, 142:8-

24           143:3). It was a struggle for Plaintiff.

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26                          Even before Mundie’s directive, Plaintiff struggled with collaborative work. The

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28           new model posed even greater difficulty for her. A number of business partners in

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30           Corporate Communications complained that Plaintiff was difficult to work with and that she

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32           failed to keep them applised of news stolies as they developed and did not take care of

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33           things or respond quick ly enough. Id. (Wiley Dep. 123:17-25, 172:6-173:6, 194:10-195:17),

35           Ex. E. Plaintiff freely acknowledges the tension that developed between her group and

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37           Corporate Communications. Id., Ex. A (Wiley Dep. Wiley 143:24-144:10). Particularly

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39           given the greater emphasis on collaboration, effective communications and relationships

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41           were essential to Pla int iff s role. But her work relationships began to deteriorate.

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  • Schofield told Plaintiff in Spring 2010 that a number of individ uals had complained
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  • she was difficult to work with. I (Wiley Dep. 174:22-176:2); Schofield Deel. <JI 6. H e t old

46           her that she was expected to improve her relationships with Corporate Communications.

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2           not respond by improving her working relationships. Busi ness partners continued to express

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4    significant concerns to Schofield about Plaintiff with increasing urgency. Schofield Deel.

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6           <j( 7.  Ulti mately, several managers met with Schofield to discuss their concerns. Id. U 7-8.

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  • Followin g that meeting, to ensure that the company had accurate, co mplete a nd firsthand
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  • information, Schofield and HR re prese ntatives spoke with a wide range of Plaintiff s

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11           business partners and supervisees (both women and men) to invite feedback (as HR does in

13           the ordinary course of its business with regard to other employees when simil ar issues arise).

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15           Id. <JI [ 9-10; Declaration of Jason Scovil (“Scov il Dee l.”), rn 3-6. All to ld, 17 individuals

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17           were interviewed. Hamilton Deel., Ex. G.

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19           C.   Disc ussion of Feedback

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2 1                          On December 6, 2010, Schofield and Sheryl Peterso n, then MSR’s Human Resources

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  • Director, met with Plaintiff to discuss with her the information they had received from the
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  • 17 individuals. H am ilto n Dee , Ex. A (Wiley Dep. 200:7-17, 202:23-203:3). They

26           summari zed the feedback, which was overwhelmingly nega tive, on PowerPoint slides. Id.

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28           (Wiley Dep. 201:4-205:15), Ex. F.

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30                          Interviewees critiqued Plaintiff s ability to build effective working relationships

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  • noting, among other things, that she was “bullying,” “bloc kfog” and “scapegoating,” and that
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  • “people fear[ed]” he Id., Ex. F. She had a “nega tive attitude” and was “disrespectful of

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35           leaders . . . and other groups.” Id. Moreover, Plaintiff was “consistently defe nsive when

37           people approach[ed] her” and “confrontational and resistant when people reach[ed] out to

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39           her.” Id., Ex. 30. She had “zero credibility with partner teams.” Id. Indeed , so me felt that

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41           “[b]usiness [was] clippled by the relationship with [Plaintiffs] team.” Id.

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  • Intervieweesalso expressed serious concerns about Plaintiff s leadership.Plaintiff
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  • had a “lac k of engagement, availability and physica l presence” and “[did] n’t want to do work

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46           or be accountable.” Id. O thers noted that they “pick[ed] up a lot of work because of”

 

 

 

 
  

MICROSOFT’S MOTION FOR SUMMARY

Perkin s Co ie LLP

1201 Third Avenue, Suite 4900

 

2           Plaintiff was “[ u]nwilling to delegate” and “micromanage[d].” Id.

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4          Finally, interviewees critiqued Plaintiff s marketing skills. Plaintiff had a “lack of

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6           strategy, marketing skills, experience and thought leadership,” did not “understand the basics

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  • of mark eting and PR,” and her “pla ns d[id]n ‘t have goal [o r] strategies.” I As a result of
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  • all of this, “[m]ost people d[id] not want to work with” Id. Ms. Peterson and Mr.

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11           Schofield told Plaintiff that these issues were se rious and that she needed to address them

13           immediately. Id., Ex. A (Wiley Dep. 227:19-25), Ex. G. Schofield asked her to develop

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15           jointly a plan with him for addressing these issues, to ld her he would support her during the

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17               process, and indica ted thereafter that she was a “valuable member of the Microsoft team”

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19           and his goal was to help her “succeed over the long term at Microsoft.” Id . , Exs. G, I.

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2 1           D.        Plaintiffs Post-Feedback Complaint

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  • After this meeting, Plaintiff sent an e-mail expressing her disagreeme Id., Ex. A
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  • (Wile y De 218:16-219:18), Ex. H, at 3. She also, for the first time, hypothesized th at she

26           was being targeted by Frank Shaw, Corporate Vice President of Corporate Communications,

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28           and his direct reports, for an incident that occurred nine months earlier.

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30                          In March 2010, Plaintiff had declined a KUOW reporter’s request to conduct an

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  • interview about a developing Microsoft technology. Id., A (Wiley Dep.146:23-149:5,
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  • 218:16-219:11), F, at 4, Ex. H. Plaintiff responded bluntly, in the terse fashion that she

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35           had already become known for (and counseled about), that “Microsoft doesn’t comment on

37           patents.” Id., Ex. A (Wiley Dep. 149:3-5), Ex. H.

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39                          Shaw- and others-d isagreed with Plaintiffs decision. Id., Ex. A (Wiley Dep.

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41           149:8-12). Shaw asked whether there was some way the story might be done, with Plaintiff

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  • or Schofield steering the reporter away from any sensitive areas involving the technology(if
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  • that iss ue eve n arose) and instead focus on the significance of the technolog Id . , Ex. A

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46           (Wiley Dep. 150:20-151:7, 151:15-152:4), Ex. H. Although Pla intiff ackno wledged that

 

 

 

 
  

MICROSOFf ‘S MOTION FOR SUMMARY

Perkin s Coie LLP

120 1 T hird Avenue, Suite 49 00

 

2           declin ed. Id. , Ex. H. Shaw expressed dismay, noting he believed “we wildly

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4    overcomplicated this” because they “could have done a short interview that would have

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6           reflected well on Microsoft and MSR in our local community.” Id., Ex. H. Shaw expressed

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8           his “complete confidence that for a nontechnica l genera l audience, e ither [Plaintiff or

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IO           Schofield] could have knocked this out of the park, while completely avoiding any potential

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11           worries about patent conversations.” Id. , Ex. A (Wiley Dep. 151:18-152:4), Ex. H.

13                          Nine months later, after the feedback meeting, Plaintiff claimed that Shaw had

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15           orchestrated the nega ti ve feedback about her from 17 indiv iduals to retaliate because he did

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17           not appreciate having been told “no” by a woman. Id., Ex. A (Wiley Dep. 218:16-219:11),

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19           Ex. F, at 4. When asked why she connected the March 2010 inciden t with Shaw and the

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2 1        feedback she received nine months later, Pla inti ff surmised that Shaw was upset with her

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22           and did not like her. Id. , Ex . A (Wiley Dep. 218:16-219:11). When asked why she related

24           Shaw’s reaction to her gender, Plaintiff responded only that she felt he was angry with her

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26           because she “stood up to him, and that it was because [she] was a woman.” Id. (Wiley Dep.

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28           222:4-15). Plaintiff has no evidence that Shaw made any comments about her gender and

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30           has nothing to support her sus picion of gender bias other than the bare fact that she is a

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  • woma Id. (Wiley Dep. 222:4-223:9 ). In fact, Human Resources received no comments
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  • from Shaw during the 2010 feedback process, and many of those who provided input were

35           outside Shaw’s organization. Scovil Deel., CJ[ 6. T hey included Plaintiff s own direct reports

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37           and business partners within MSR and at WagEd. Id. Several were women. Id.

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39           E.

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Offer of Coaching and Support

Following the December 2010 meeting, Schofield and Plaintiff prepared an action

 

  • planto address these con Hamilton Deel., Ex. A (Wiley Dep. 223:10-20, 227:12-25,
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  • 233 :3-235 :11 ), E x. F , at 5 , E x. G, Ex. They met to disc uss the actio n plan and Pla int iffs

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46           job performance. Id. , Ex. A (Wiley De p. 227:12-25, 233:3-235:11, 238:12-17), Exs. G, 1-J.

 

 

 

 
  

MICROSOFT’S MOTION FOR SUMMARY

Perkin s Coie LLP

1201 Third Avenue, Suite 4900

 

2           relationship mending and buildin g. Id., Ex. A (Wiley Dep. 238:12-17, 245:24-246:9),

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4    Exs. J-K, which Schofield indicated he fully supported. Id., Ex. A (W ile y Dep. 238:12-17),

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6           Ex. J. Plaintiff, however, declined the offer. Id. (W iley Dep. 237:24-238:2). Plaintiff has

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8           ne ver rece ived any discipline, de motion, or suspension as a result of this feedback.

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IO           F.  Plaintiff Misappropriates Confidential Documents

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  • After the December 6, 2010, meeting, Pla intiff re vie wed her e mails and ide ntifi ed a
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  • numb er of them that she believed might be helpful in prosecuting this lawsuit against

15           Microsoft. Id. (Wiley Dep. 89:12-93:9). In a blatant case of “self-help discovery,” she

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17           surreptitiously printed several thousand pages of confidential Microsoft documents and

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19           emai ls (co ntaining co nfidential, tec hnica l, marketing, and financ ial info rmatio n) and

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2 1           delivered them to her newly-retained lawyers. Id. (Wile y Dep. 88:19-93:9); see also

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  • Hamilton Dee, Ex. Q. At least some of those materials were attorney-client privileged
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  • communications from Microsoft in-house la wyer Id. (W iley Dep . 94:1-95: 16). Neithe r

26           Pl aintiff nor her lawyers alerted Microsoft to the misappropriation at the time.

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28           G.           Plaintiff Files Lawsuit

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30                          On February 16, 2011, Plaintiff filed her Complaint allegi ng (a) gender

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32           discri mination (“and/or retaliation”) and (b) “Breac h of Implied-In-Fac t Co ntract/S pecific

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34           Employe r Represe ntati o ns; Promfasory Estoppel (‘Thompson claim’).” See Compl. Plaintiff

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36           commenced a med ical lea ve in November 2011 and has been on leave since then. Hamilto n

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37           Deel., Ex. A (Wiley Dep. 251:22-252:12).

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39                                                                    III.       STATEMENT OF ISSUES

41                          Should the Court enter summ ary judgment dismissing Plaintiff s claims and entering

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43           judgment in Microsoft’s favor on its counterclaims?

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IV.       EVIDENCE RELIED UPON

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2                          Microsoft’s motion is supported by the Declarations of Kevin J. Hamilton, Jason

4    Scov il, and Kev in Schofield , with the attached exhibits.

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6                                                      V.        AUTHORITY

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8       A.  Summary Judgment Standard

IO                          Summary judgment shall be granted “if the pleadings, affidavits, depositions and

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12           admiss ions o n fil e de mo nstrate that there is no genuin e issue as to any material fact and the

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14           party bringing the motion is entitled to judgment as a matter of law.” Sheehan v. Central

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  • Puget Sound Reg’l Transit Auth., 155 Wn.2d 790, 797 (2005); CR 56(c). The opposing
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  • party must go beyond the pleadings and designate specific facts to show that there is a

19           genuine iss ue for trial. White v. State, 131 Wn.2d 1, 9 (1997). If the nonmovant “fa ils to

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2 1           make a showing sufficient to establish the exis tence of an element essential to that party’s

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23           case, and on which that party will bear the burden of proof at trial, then the court should

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25           grant the motion.” Young v. Key Pharma., Inc . , 112 Wn.2d 216, 225 (1989) (internal

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27           quotation marks omitted).

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29                         B.  Plaintifrs Gender Discrimination Claims Fail as a Matter of Law

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  • Plaintiff first asse1ts a claim for gender discrimination. Plaintiff contends that

32           (1) Microsoft failed to promote her because of her gender; (2) Microsoft paid her less than

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34           similarly-situated male employees; and (3) the feedback she received (from women and

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36           men) in 2010 rega rding he r workplace petformance and behav ior was prompted by animus

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38           because of her gender. None of these claims can survive scrutiny; all should be dismissed.

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40                          1.         Framework for Disparate Treatment Claims

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  • To establish a claim of sex discrimination und er the Was hington Law Against
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  • Discrimination, Chapter 60 RCW (“WLAD”), an employee must show that her employer

45           “simply treats some people less favorably than others because of their” gender. Shannon v.

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2           discrimination, 1 or, in the absence of such evidence, sufficie nt circumstantial evidence.

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4    Fulton , 279 P.3d at 506-07. Despite voluminous discove ry, Plaint iff can present no direct

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6           evidence of discrimination. Instead, relying almost entirely on her own subjective

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8           inte rpretatio ns and beliefs, Plaintiff claims that discriminat ion was “really” the motivation

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IO           behind the actions of which she complains. But as the rather dramatic lack of evidence in

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11           this case shows, Plaintiff falls well short of establishing a prima facie case of discrimination,

13           and her claim should be dis missed.

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15                          Where an employee relies o n ci rcumstantia l e vide nce, Washington courts use the

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17           burden shifting analysis established in McDonne ll Douglas Corp. v. Green, 411 U.S. 792

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19           (1973). Domingo v. Boeing Employees’ Credit Union, 124 Wn. App. 71, 77 (2004).2 To

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2 1        establish a prima facie case for unequal pay, a “plaintiff must show ( l ) [she] belongs to a

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22           protected class, (2) [she] was treated less favorably in the terms or conditions of [her]

24           employment than a similarly situated, nonprotec ted employee, and (3) [she] and the

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26           nonprotected ‘com parator’ were doing substantially the same work.” Id. at 81.

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28                          To es tablis h a prima facie case for a failure-to-promote claim, a plaintiff must show

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30           “(1) she is a woman; (2) she applied and was qualifi ed for an ava ila ble promotion; (3) she

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  • was not offered the position; and (4) the promotion went to a ” Ba rker v. Advanced
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  • Silicon Materials, LLC , 131 App. 616, 623-24 (2006). In each insta nce , a plaintiff must

35

  • 1 Direct evidence typically includes “discrim inato ry statementsby a decision ” Fulton
  • v. D of Social & Health Servs., 279 P.3d500, 507 n.17 (Wn. App. 2012); see e.g., Conklin v. City
  • of Reno,433 F Appx. 528, 531 (9th Cir. 2011) (plaintiff referred to as a “cunt” and “dike”);
  • Dominguez-Cun y Nev. Transp. Dept., 424 F.3d 1027, 1038 (9th Cir. 2005) (supervisor said “he
  • wished he could get men to do [women employees’] jobs,” that women “have no business in
  • construction,” and” shoudl only be in subservient positions,” and that he “would never work for a
  • woman”); Godwin v. Hunt Wesson, Inc. , 150 F.3d 1217, 1221 (9th Cir. 1998) (decision-maker said
  • that he “did not want to deal with another female”). No such evidence exists in this
  • 2 Under this framework, a plaintiff has the initial burden of proving a prima facie Id.
  • If the plaintiff does so, the employer rebuts any inference of discrimination by presenting evidence
  • that the alleged adverse action occurred for a nondiscriminatory Id. To survive summary
  • judgment, the plaintiff must then show that the proffered reason is a pretext for Id.

 

2           protected class and that discrimination was a subs tantial fac tor fo r the e m ployer’s actions.

3

4    See, e.g., Mac kay v. Acorn Custom Cabinet1y, Inc., 127 Wn.2d 302,310 (1994).

5

6                                         a.         Plaintiff’s Failure-to-Promote Claim Fails as a Matter of Law

7

8                          Plain tiff s fail ure-to- promote claim fails at the very threshold. First, the Complaint

9

IO           states no facts establishing a fail ure-to- promote claim. Comp!. 9[ 3.2. It does not allege

11

  • (a) that Plai ntiff app lied for any promotion, muc h less when she applied, (b) ident ify the
  •  

14

 
  • success ful cand idate, (c) explain how her qualifications com pared to the person selected or,

15           most importantly, (d) allege that the successful candidate was male. See Campi.; Barker,

16

17           131 Wn. App. at 623-24. In the absence of such allegations, the claim necessarily fails.

18

19                          But even if she had alleged the material ele ments of the claim (which she most

20

2 1           assuredly has not), Plaintiff has utterly no evidence to supp ort such a claim. During her

22

  • deposition, Plaintiff candidly conceded that she “did not apply for another new j”
  •  

25

 
  • Hamilto n Deel ., A (Wiley Dep. 257:18-22). She could not ide ntify any o pe n position

26           that she sought that would have resulted in a promotion or any open position at a higher

27

28           level fo r whic h she believed she should have been selected. Id. (W iley Dep. 256 :21-257: 15,

29

30           258 :11-19). Nor co uld Plai ntiff say when she should have been promoted. Id. (Wiley Dep.

31

  • 255:16-256:20). She could not ide ntify who received the promotion she shouldhave
  •  

34

 
  • received or, at the most fundamental level, whether that individual was a male or female . I

36

 

35           (Wiley Dep. 257:18-258:19). These are not trivial or incidenta l omissions; they constitute a

37           complete failure of proof.3 Plaintiff s failure-to-promote claim fails as a matter of law.

38

39

40

41

  • 3 Instead, Plaintiff merely guessed that, based on her trajectory , Microsoft should have
  • offered her a promotion at some undefined time in the last five or six years of her Id.
  • (WileyD 256:11-257:22). No Washington court has ever accepted such speculation as a
  • sufficientbasis for a promotion claim under RCW 60. And, even if support for such fanciful
  • projections existed (which it surel y does not), the statute of limitations under the WLAD is three
  • Lewis v. Lockheed Shipbuilding, 36 Wn. App. 607, 613 (1984).

 

 
  

 

 

 

 

 

 

b.               Plaintifrs Unequal Pay Claim Fails as a Matter of Law

3

 

2                          Plaintiff s pay claim also fails. To establish disparate treatment in pay (or

4    promotion), a plaintiff must ide ntify “co mparat ors” who are sim ilarly situ ated “in all

5

6           material respects, “including that the plaintiff and the comparator “were doing substantially

7

8           the same work.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006);4 Vasquez v. Cnty. of

9

IO           L.A., 349 F.3d 634, 641 (9th Cir. 2003) (“individua ls are s imilarly s ituated when they have

11

  • similar jobs and display similar conduct”; alleged comparator with greater responsibility was
  •  

14

 
  • not similarly situated to plaintiff); Domingo, 124 App. at 81. It is relevant whether the

15           alleged comparators were evaluated by the same standards and the same decisionmakers.5

16

17                          Plaintiff alleges her “earnings have been depressed because she is a woman … She

18

19           has not had level increases as have her male co unterparts, nor has her sala ry been increased

20

2 1          as theirs have….”Compl. <j[ 3.2. Asked to whom she was refening, Plaintiff named six

22

23           male “co mpara to rs.”  Ha milton Dee l., Ex. A (Wiley  De p. 47: 15 -48:9).    But , asto nishingly,

24

25           she admitted that she had no idea whether they were paid more or less than she was. Id.

26           (Wiley Dep. 49:18-21, 50:4-53:23, 54:23-55:2, 55:24-56:14, 56:24-57:4, 57:8-25, 58:3-5,

27

28           58:17-60:21, 63:17-21). She didn’t know whether their bonuses were greater, or smaller

29

30           than hers, whether they had received larger or sma lle r stock awards, how they had been

31

32           evaluated, or their employee level. Id. Instead, when pressed to defend her accusation, she

33

34           admitted that she had no proof, but “believed” it to be true. Id. (Wiley Dep. 50:19-51:1).

35

36

37

38

  • 4 Because WLAD “substantially parallel[s] Title VII,” the courts “may look to federal law
  • for gu” Washington v. Boeing Co.,105 Wn. App. 1, 8 (2000).
  • 5 See, g., Kirby v. City of Tacoma, 124 Wn. App. 454, 475 (2004) (“[s]imilarly situated
  • employees must have the same supervisor,[and] be subject to the sa me standards”); Jones v. S.
  • Bank Nat’l Ass’n, 2006 WL 1635704, at *5 (E.D. June 1, 2006) (dismissing WLAD age
  • discrimination claim in the absence of evidence that younger employees were in fact similarly
  • situated ); Plateau South Carolina Comm’nfor the Blind, 50 Fed. Appx. 653, 655 (4th Cir. 2002)
  • (male comparators not similarly situated where the supervisor responsiblefor denyingthe plaintiff a
  • salary increase was not involved in awarding a salary increase to the male comparators).

 

 
  

 

 

 

 

 

 

None of the ind ividu als Plainti ff has identified is an appropriate “co mparator.”

2           Plaintiff cannot show that her alleged comparators were performing “substa n tiall y the sam e

3

4    wo rk” and eva luated by the same decision makers using the same standards and

5

6           performance expectations. Domingo, 124 Wn. App. at 81; Jones, 2006 WL 1635704, at *5.

7

8           Many of them hold highly tec hnical jobs in different organizati ons having little to do with

9

IO           the public relations function Plaintiff pe1formed. Their job responsi bilities and performance

12

 

11           mettics were radically different than Plaintiff s. All but two of the six had different

13           supervisors and decisionmakers on their compensation and promotion.6 The following chart

14

15           summarizes the pertinent fac ts regarding these “compara tors”‘ employment7:

16

Employee

Organization/ Supervisor

Primary Duties

Education

Title/ Classification

PR

Role?

Plaintiff

Marketing &

Co mmunicatio ns/ Schofi eld

PR and media relation s

B.A./international re lations &

econo mics

Dir./Mktg. &

Co mmunications Level 66

Yes

Behrooz Chitasz

MSR Strategy Mgmt/ Schofield

Technology transfer from research to end product

B.S. in computer science; B.S. in statistics

Dir./IP Strategy Level 67

No

Sailesh Chutani

Product Planning/Scott Horn

Planning for Windows Mobile;

identifying

ga ps in IP and product portfolio

B.S. in technology;

M.S. and Ph.D. in computer scie nce

Sr. Dir. of Product Planning

Level 67

No

Phillip Fawcett

MSR Strategy Management/James Oker

Technology transfer from research to Windows Mobile and Windows Embedded

B.S. in software engineering; B.A. in accounting;

M.S. in tax

research; M.B.A.

Principal Research Program Mgr.

Level 65

No

 

 

17

18

19

20

2 1

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45                          6 Plaintiff acknowledges that most of the comparators held jobs very different from hers. See

46           Hamilton Deel., Ex. A (Wiley 49:4-15, 51:5-13, 53:13-54:2, 54:8-17, 56:15-20, 57:5-7).

47                          7 The Scovil and Schofield Declarations provide additional detail about these individuals.

 

 
  

 

 

 

 

 

 

 

 

Employee

Organization/ Supervisor

Primary Duties

Education

Title/ Classification

PR

Role?

Daron Green

Technology Policy Group R&D/David Tennenhouse

Appraisal of technology; technical liaison to external community

Ph.D. in theoretical che mistry & physics

General Mgr.,

Techno logy Policy Level68

No

Tom Healy

MSR

Connections/Dr. Daron Green

Identifying breakthrough research from academia

M.S. in training & organizational

development

Director/Research Mgmt.

Level 66

No

James Oker

Research-Program Management- Redmond/Schofield

Managing team that facilitates technology transfer from research to product

B.S. in a11 and design, architecture from MIT.

Director/Program Mgmt.

Level 67

No

 

 

2

3

4

5

6

7

8

9

IO 11

12

13

14

15

16

17

18

19

20

2 1

  • In short, none of Plaintiff s alleged comparators was a marketing and
  •  

24

 
  • communications professional, all had highly technical backgrounds and performed highly

25           technical jobs (unlike Plaintiff), and none was evaluated against the same metrics. None

26

27           were similarly-situated to Plaintiff. Plaintiff s gender discrimfoation claim fails without

28

29           evidence that she was paid less than similarly-situated males petf o rmin g the same work.8

30

31

  • 8 Plaintiff s only other allegation is that male employees were treated more favorably than
  • s In support, she offers nothing but her concl usory allegation that male employees were offered
  • unspecified “special projects” and the opportunity to attend unspecified meetings and senior-level
  • events that she did not receive. Hamilton D, Ex. A (Wiley Dep. 258:23-259:14, 300:24-301:23).
  • When asked for specifics, she could only identify Jim Oker, who was responsible for technology
  • transfer from MSR into its commercial products, an individualholding a technical degree from MIT,
  • and who- she believed- was invited to lab director forums and individual lab meetings to which she
  • was not invited and as to which she had to solicit her own Id. (Wiley Dep. 300:24-
  • 303:25). But “[a] nonmoving party cannot defeat a motion for summary judgment with conclusory
  • statements of fact” or speculation as to her employer’s Baldwin v. Silver, 165 Wn. App.
  • 463,471 (2011);see also Griffith v. Schnitzer Steel I, Inc., 128 Wn. App. 438 , 447 (2005 ) (“an
  • employee’s subjective beliefs and assessments . . . are irrelevant” to questio ns of employer intent in
  • discrimination case); Seven Gables v. MGM/VA Entmt Co., 106 Wn.2d 1, 13 (1986)
  • (nonmoving party “may not rely on speculation, argumenta tive assertions that unresolved factual
  • iss ues remain, or in having its affidavit s co nsidered at face value” to defeat summary judgment ).
  • This is not even remotely sufficient to support a claim of discrimination under RCW 60.

 

 
  

 

 

 

 

 

 

c.                Plaintiff Has No Other Evidence of Gender Bias

3

 

2                          Finally, Plaintiffs gender discri mination claim fails to the extent she asserts that the

4    widespread and consistent criticism collected in November of 2010 from coworkers (wo men

5

6           and men) was motivated by her gender.

7

8                          First, and most fundamentally, nothing sugges ts that the information collected was

9

IO           motivated by Plaintiff s ge nder (which is the essentia l element of her discr imination claim).

11

12         Seventeen of her business partners, direct reports and others were interviewed. Many were

14

 

13           women. None used derogatory or sexist terms to describe Plaintiff. Nothing even remotely

15           suggests that this collected feedback was anything other than a good faith effort to collect

16

17           feedback with respect to Pla intiff and her performance and workplace behavior.

18

19                          Plaintiff identifies two key individuals as playing an instrumental role in the alleged

20

2 1           discrimination against her: Schofield and Shaw. Hamilton Deel., Ex. A (Wiley Dep.

22

23           254:15-20), CompI., at 3-4. Schofield, her manage r, was respo nsible for reviewing her

24

  • performance and making decisions concerning her salary, bonuses, stock awards and
  • Hamilton Deel., Ex. A (Wiley Dep. 66:5-13, 74:9-18). Her single

27

28           disagreement with Shaw, who was not her supervisor, relates to a difference of opinion in

29

30           how to handle a s ingle med ia inquir y. Yet Plainti ff admHs that neither Shaw nor Schofield

31

32           ever made any sexist or sexually offensive remarks to her. Id. (Wiley Dep. 11:11-12:19).

33

  • Oddly, Plaintiff found Shaw’s sugges tion that she be a spokesperson for a
  •  

36

 
  • technology-related story “sexist,” and also complafos he added a smiley face emoticon in an

37           e-mail to her and used the words “eek” and “shoot me now” in e-mails mentioning her and

38

39           sent to other people. Id. (Wiley Dep. 12:20-15:24). Asked why she thought these comments

40

41           were sexist, she responded “[b]ecause it was about me,” and she did not think Shaw would

42

43           make those comments about men. Id. (Wiley Dep. 15:25-16:8). But she ac knowledge d that

44

45           these communications did not comment on he r gen der. Id. (Wiley Dep. 16:9-11).

46

47

 

2           although, again, it did not refer to her gender. She claims that Schofield told her when he

3

4    hired her for his organization that he wanted to “save” her from “leaving the compa ny.” Id.

5

6           (Wiley Dep. 16:12-17:12).  She believed this comment  was sexist only because she  did not

7

8           think Scho field would have made this comment to a man. Id. (Wiley Dep. 16:24-17:7).

9

IO           This rank speculation is not remotely sufficie nt to survive summary judgment.

12

 

11                          Plaintiff also points to a conversation she had with one of her busi ness partners, Tom

13           Pilla, the General Manager of Corporate Communicatio ns, who (acco rding to Plaintiff) told

14

15           her that cett ain unnamed persons in Shaw’s organization called her “Mrs. No” and “bitch.”

16

17           Hamilton Deel., Ex. A (Wiley Dep. 183:2-19). Even if true, however, this hardly establishes

18

19           a discriminatory animus motivating the widespread criticism of her workplace performance

20

2 1        and behavior. “Mrs. No” expresses disp leasure with Plaintiff s approach to problem solving

23

 

22           but it is not a comment on Plai ntiff s gender. Plaintiff does not conte nd that Mr. Pilla

24           himself called Plaintiff a “bitch,” only that he reported that unidentified others used that

25

26           term.9 Plaintiff admittedly has no evidence who those individuals were, what they said, how

27

28           often, in what contex t and whet he r any of them played any role in providing feedback on her

29

  • performance or workplace conduct or co mpensation or any other decisions relating to her
  •  

32

 
  • employmen This is, by a wide margin, simply insufficient. 10

34

 

33                          Finally, even  if  Pl a int iff could present  proof the feedback she received in  2010 was

35           prompted by a discriminatory animus-   which she cannot-    that feedback did not constitute

36

37           an adverse employment action, as required to esta blish a prima facie case. Kirby, 124 Wn.

38

39

  • 9 Indeed, Plaintiff ad mitted at her deposition that she herself had “probably” used the term
  • “bitch” Hamilton Deel., Ex. A (Wiley Dep. 187:19-20).
  • ‘ 0 Even if such state ments could somehow be relevant they are, in any event, inadmissibl e as
  • hearsay, and thus do not raise a Iiable iss ue of material fact. ER 802; Dunlap v. Wayne, 105 Wn.2d
  • 529, 535 (1986) (“A trial court may not consider inadmissible hearsay when ruling on a motion for
  • summary judgment”); Leibovitz New York City Transit Auth., 252 F.3d 179, 189 (2d Cir. 2001)
  • (where the plaintiff had no personal knowledge of the harassment and based her claims entirely on
  • what she had heard from others, she could not prove discrimination based on hearsay).

 

 

 

 
  

MICROSOFT’S MOTION FOR SUMMARY

Perkins Coie LLP

1201 Third Avenue, Suite 49 00

 

2           <j[ 3 .1 1, but can not esta blish that this criticism amounted to a change in the terms or

3

4    conditions of her employment. Hua v. Boeing Cotp., 2009 WL 1044587, at *2 (W.D. Wash.

5

6           Apr. 17, 2009) (supervisor’s “criticisms of plaintiffs work” did not ‘materially affect the

7

8           compensatio n, terms, co nditions, or priv ileges of e mployment’ and did not, therefore,

9

IO           constitute [an] adverse employment action”) (quoting Davis v. Team Elec. Co., 520 F.3d

12

 

11           1080, 1089 (9th Cir. 2008)). Plaintiff remained in her position for almost a full year, left

13           only on her doctor’s direc tion, and remains, to thfa day, a Microsoft employee. Courts have

14

15           routinely rejec ted the claim that fear of a future adverse employment action alo ne co nst itutes

16

17           a present adverse employment action that can sus tain a claim of sex disc rimination.12

18

 

19                                         d.

20

2 1

Microsoft’s Legitimate Non-Discriminatory Reason for Addressing Plaintiff’s Performance Issues

 

22                          Even assuming that Plaintiff could make a prima facie showing of sex

23

  • discrimination , Microsoft had a leg itimate non-d isc riminat ory reaso n for addressing her
  •  

26

 
  • performance. Many of Plaintfffs coworkers expressed significant and consistent concerns

27           regarding Wiley. See supra at 4-5. Plaintiff admitted the importance of effective

28

29           communication and positive working relationships with these individuals. Hamilton Deel.,

30

31           Ex. A (W ile y Dep. 96: 11 -22, 98:25-99:ll, 116:21-117:9,119:9-20). She acknowledged that

32

33           Microsoft has a responsibility to deal with widespread complaints abo ut an e mployee or

34

  • manager, I (Wiley Dep. 266:16-19), and that it is good management practice for a
  •  

37

 
  • supervisor to speak to an employee when co mplai nts are raised about bullying or

38

39

40

  • 11 See also Chuang Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1126 (9th Cir.
  • 2000) (no adverse employment action where challenged action “did not materially affect the
  • compensation, terms, conditions, or p1ivileges of the [plaintiffs] employment”).
  • 12Mc Kenzie v. Il Dept. ofTransp., 31 Fed. Appx.922,926 (7th Cir. 2002) (“speculative”
  • claim that plaintiff “might lose her job in the future” was “not [a] materially adverse change[] in her
  • employment”); Dage v. Johnson, 537 Supp. 2d 43, 61-62 (D.D.C. 2008) (“a subjective fear of
  • future employment action-especially one that never happens-doesnot create a lliable issue of fact”).

 

2           acted reasonably by addressing these concerns with her.

3

4                e.          Plaintiff Has No Evidence of Pretext

5

6                          To show that Microso ft ‘s reaso n for addressing her performance was a pretext for sex

7

8           discd rrunation, Plaintiff must produce specific evidence showing that reason is “unworthy of

9

IO           belief.” Hines v. Todd Pacific Shipyards Corp., 127 Wn. App. 356,372 (2005). “[M]ere

11

12         assertions that [an emplo yer] had discrimjnatory moti vation and intent . . . [are] inadeq uate.”

14

 

13           Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983).13

15                          Plaintiff cannot make this showing as she has no evidence of discrirrnnation, let

16

17           alone “specific and substantial” evidence as the law requires. Cornwell v. Electra Cent.

18

19           Credit Union, 439 F.3d 1018, 1031 (9th Cir. 2006). Rather, she only speculates, incorrect ly,

20

2 1           that the feedback she received in December 2010 was tied somehow to the March 2010

22

  • incident when she contends she “stood up” against Hamilton Deel., Ex. A (Wiley
  •  

25

 
  • 222:4-223:9). Plaintiff ca nnot demonstrate pretext or raise material issues of fact by

26           asking this Court to second guess Microsoft’s legitimate and honestly-held belief that

27

28           Plaintiff had performance issues warranting a performance disc ussio n. 14 “An employee’s

29

30           assertion of good performance to contradict the employer’s assertion of poor performance

31

  • does not give rise to a reasonable infe rence of discrim ina” Chen v. State, 86 Wn. App.
  •  

34

 
  • 183, 191 (1997). Plaintiff cannot meet her burde n of showing

35

  • 13 Had Plaintiff made out a prima facie case on her failure-to-promote claim, she would have
  • been able to show pretext only by presenting evidence that her credentials  were “so superior to the
  • credentials of the person selected for the job that no reasonable person, in the exercise of impartial
  • judgment, could have chosen the cand idate se lected over the plaintiff for the job in ” Byrnie
  • v. Town of Cromwell, of Educ., 243 F.3d 93 (2d Cir. 2001). She cannot do so because s he cannot
  • even point to any position to which she should have been
  • 14 Kariotis Navistar Int'[ Tran s. Co, p ., 131 F.3d 672,677 (7th Cir. J 997) (“[T]he question
  • is not whether the employer’s reasons for a decision are right but whethe r the employer’s desc ription
  • of its reasons is honest”) (internal quotation marks and citations omitted); Richards v. City of Seattle,
  • 2008 WL 2570668, at *10 (W.D. Wash. June 26, 2008) (“The Court’s function … is not to second­
  • guess the employer’s interpretation of its policies and regulations, but rather to assess whether
  • sufficient evidence of discriminatory or retaliatory behavior has been presented to warrant a “).

 

 

 

 

 

 

 

2.               Plaintifrs Retaliation Claim Fails

3

 

2                          Plaintiff next alleges that Microsoft “retaliated” against her, although it is unclear

4    whether she intends to set out an independent retaliat ion claim. Compl. <Jl.9[ 4 . 2-4.7    . T o the

5

6           extent that this is nothing more than a restatement of her gender discrimination claim, it fails

7

8           for all of the reasons outlined above. To the extent Plaintiff asserts a stand-alone retaliation

9

IO           claim, then she has failed to make out a prima facie case and the claim s shou ld be dismissed.

11

12                     To show retaliation under the WLAD, Plaintiff must show Microsoft retaliated

14

 

13           against her because she “opposed … practices for bidden” by the WLAD. Estevez v. Faculty

15           Club of Univ. of Wash., 129 Wn. App. 774,798 (2005). She does not, however, allege that

16

17           she engage d in any activity protected by the WLAD. Compl. <JI<J[ 4.1-4.9. Instead, she claims

18

19           Microsoft retaliated against her “when she refused to violate corporate policy by speaking to

20

2 1           the media about patent applications.” Id. <JI 3.22. When asked to describe her retaliation

22

  • claim, Pl aintiff respo nded that she believe d Schofield, Shaw and his reports retaliated
  •  

25

 
  • against her because of her gender. Hamilton Dee, Ex. A (Wiley Dep. 260:3-262:18). She

26           could not identify any actio n she took, let alone protected activity, that resulted in any

27

28           alleged retaliation. As a result, her claim fails.15 Estevez , 129 Wn. App. at 797.

29

30                          3.   Plaintifr   s Contract-Based Claim Should Be Dismissed

31

32                                         a.         Requirements for Thompson Claim

33

34                          The Complaint styles Plai ntiff s Second Cause of Action as “Breach of Implied-in­

35

36           Fact Contract/Specific Employer Representations; Promissory Estoppel (‘Thompson’

37

  • claim).” Comp, at 7. The Complaint does not, however, allege facts that would suppo1t a
  •  

40

 
  • claim for breach of implied-in-fac t contract or promissory estop pe 16 Rather, it alleges

41

  • 15Plaintiff’s retaliation clai m, similarly, fails as she cannot demonstrate any causal
  • connection between the conflict over the KUOW “patent story” and any adverse employment action.
  • To the extent Plaintiff points to this lawsuit or her internal complaints in December 2010, such
  • activity may be “protected” but it occurred after the supposedly retaliatory actions at
  • 16 “[T]he requisites of contract formation: offer, acceptance, and consideration are necessary
  • predicates” of an implied Thompson, 102 Wn.2d at 228; see also Bulman v. Safeway, Inc.,

 

 

 

 

 

 

 

“Microsoft made promises to Wiley of specific treatment in specific situations.” Id.

2           (e mphasis added). The Complaint states that “Microsoftcreated an expectation, and thus

3

4    had an obligation, of treatment in accordance with its promises under Washington common

5

6           law as a1ticulated by the Washington Supreme Court in Thompson v. St. Regis Paper Co.,

7

8           102 Wn.2d 219, 685 P.2d 1081 (1984), and its progeny.” Co mpl. <JI 5.3 (e mphas is added). It

9

IO           alleges that Plaintiff “reasonably and justifiably relied upon Microsoft’s promise of specific

12

 

11           treatment in specific situations when she refused to violate the corporate policy agai nst

13           speaking to the media about patent applications,” and was “retaliated against for so doing.”

14

15           Id. 1[ 5.4 (e mphasis adde d). This is a so-called Thompson claim.

16

17                          To proceed on this claim, Plaintiff must show evidence that (1) Microsoft made

18

19           promises of specific treatment in specific situations; (2) she justifiably relied on any of those

20

2 1         promises; and (3) the promises of specifi c trea tm ent were breached. Bulman, 144 at 340-41.

22

23                                                       b.         The Prominent Disclaimer in Microsoft’s Employee Handbook

  • Bars Plaintifrs Thompson Claim
  •  

26

 
  • Plaintiff s Thompson clai m fa ils at the outset because a plaintiff cannot justifiably

27           rely on an employer “promise” of specific treatment in an employee handbook where that

28

29           handbook expressly disclaims any intent to make such a promise. Microsoft’s Employee

30

31           Handbo ok incl udes just such a discl a imer here, and Pla intiff s claim fails accord ingly.

32

33                         There can be no enforceable promise where an employer makes clear that its written

34

35           policy statements are general in nature and not intended to create legal obligations:

36

  • An employer’s written policies may amount  to  enforcea ble promises  to the
  • extent they promise  specific treatment  in specific situations.   But an emplo yer
  • will  not   be     bound   by   statements   in  employment  manuals    that are
  • conspicuously disclaimed or that are merely general statements of company

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  • 144 2d 335, 351-52 (2001). These eleme nts are missing from Plaintiff s Co mplaint. Si milar ly,
  • promissory estoppel requires a plaintiff to prove (1) a promise which (2) the promisor should
  • reasonably expect to cause the promisee to change her position and (3) which does cause the
  • promisee to change his position (4) justifiably relying upon the promise, in such a man ner that (5)
  • injustice can be avoided only by enforcement of the promise. Uznay v. Bevis, 139 App. 359,
  • 369-70 (2007) (citation omitted). Again, Plaintiff s Complaint contains no such

 

 

 

 

 

 

 

policy. To be effective, a disclaimer must convey the message that nothing

  • contained in the handbook, manual, or similar document is intended to be
  • part of the employment relationship and that such statements are instead
  • simply general state ments of company policy.
  •  

6

 
  • Clark Cnty. P Utility Dist. No. 1 v. Int'[ Brotherhood of Elec. Workers, Local 125, 111

7           Wn. App. 690, 696 (2002) (inte rnal quotatio n mark s, citat ions, and alteration omitted).17

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9                          Microsoft’s Employee Handbook contains an unambiguous disclaimer that makes

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11           clear its intent to avoid any contractual promise, implied or otherwise:

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  • This handbook and the linked sites are intended to provide general
  • info rmat ion and guide lines onl They are not to be read as creating any
  • express or implied  promise  or contract for employment,  for  any  benefit  or
  • specific treatment in any specific situation.   Nothing in  this  handbook or  in
  • the linked sites changes the at-will nature of your e mplo yment relat ionship
  • with Microsof This handbook and linked sites are not intended to be legal
  • document

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2 1          Hamilton Deel., Ex. A (Wiley Dep. 145:20-146:17), Ex. L, at 4. Plaintiff acknowledged that

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  • she was familiar  with and  understood  this  disclaimer.    I Ex. A (Wiley Dep. 146:18-22).
  •  

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  • Moreover, Plaintiff s Agreement states that it is the “entire agreement” between the parties

26           and any other representation or promise- unless in writing and signed by both parties- is

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28           not binding. Id., Ex. C. Plaintiff s Thompson claim fails for this reason alone.

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30                                         c.          Plaintiff s Cannot Rely On An Admittedly Unknown Policy

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32                          Even if Microsoft’s disclaimer did not so clearly bar Plaintiff s Thompson claim, the

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34           claim would fail. A claim for breach of promise of specific treatment req uires that, “t he

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  • employee must be aware of the promises of specific treatment in s pecific situations, not
  •  

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  • merely an atmosphere of fair treatme” Bulman, 144 Wn.2d at 342-44. It is necessary that

39           “employees justifiably rely on the expressed policies” of any employer in order to expect a

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41           change in the terminab le-at-w ill re lations hip. Thom pson, 102 Wn.2d at 230, 233.

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  • 17See also Quedado Boeing Co., 168 Wn. App. 363, 374 (2012) (affirming summary
  • judgment where policy contained disclaimer: “[A]n employer can disclaim what might otherwise
  • appear to be enforceable promises in handbooks or manuals or similar )”.

 

2           “assumed” that the Microsoft Employee Handbook contained an applicable non-retaliation

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4    policy without ever specifically looking for or reviewing any such policy. Hamilton Deel.,

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6           Ex. A (Wiley Dep. 262:3-265:2). Plaintiff testified as follows:

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  • Q. Ok     So the promise that Microsoft broke was the promise not to
  • permit retaliatio n   against    you    for    following  co rporate    policy as

IO                                    described in paragraph 5.2 [of the Complaint]?

  • Yes.
  • There’s no other promise they broke?
  • Well, I think there’s a whole other section on gender, but I’m not
  • combining the two, so I’m just focusing on the retaliation specific to the
  • corporate po
  • Q. When and where did Microsoft make this specific promise?
  • I believe that as part – as being an employee of Microsoft, that they did
  • not pe rmit reta liatio n. I believe that was corporate policy.
  • Where does it say that? Is it in writing somewhere?
  • I don’t know. I just figured it was in the employee handbook.

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22           Id. (Wiley Dep. 263:18-264:11) (emphasis added). This admis sion is dispositive. Plaintiff

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  • did not read and could not ide ntif y a speci fi c anti-retaliation policy, so ca nnot have
  •  

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  • reaso nably relied on any promise of specific Bulman, 144 Wn.2d at 342-44;

27           Thompson, 102 Wn.2d at 230, 233. In Bulman, the plaintiff could testify only that he had

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29           “probably” seen the document containing the suppose d promises of specific treatment, but

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31           was unab le to “de mons trat e a ny familiarity” with the provis ion in question. 144 Wn.2d at

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33          342-44. On that record, the Washington Supreme Court found the jury verdict in favor of

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  • the plaintiff to be “clearly unsupported by subs tantial eviden” Id. For precisely the same
  •  

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  • reason, Pla intiff s Thompson claim is me ritless and should be dismissed.

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38                                         d.         There is No Patent “Policy” Prohibiting PR Interviews

40                          Finally, even if Plaintiff s Thompson claim were not barred by the disclaimer in

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42           Microsoft’s employee handbook and even if she had actuall y looked fo r and relied upon a

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44    policy that she thought existed, her claim would none theless fail as there is, in fact, no

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46           Microsoft written policy or procedure that bars any statements concerning patented

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MICROSOFT’S MOTION FOR SUMMARY

Perkin s Coie LLP

1201 Third Avenue, Suite 49 00

 

2           “ret aliate” against them for enforci ng such a nonexistent “policy.”

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4          Plaintiff claims that permitting the KUOW interview would have violated Microsoft

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6           policy. Yet she has not identified any policy, record, or company publication prohibiting

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8           public disc ussio n about patents. The only writing of any kind Plaintiff produced to support

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IO           her belief was a Frequently Asked Questions page from the Microsoft website for Company

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11           inventors wishing to blog. On its face, the FAQs were not addressed to PR professionals

13           whose job is to facilitate media access. Hamilton Deel. Ex. A (Wiley Dep. 159:12-161:2,

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15           163:14-164:14, 171:10-20), Ex. M . 18

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17                          Presented at her deposition with numerous exa mples in which Microsoft has publicly

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19           discussed its technology and patents, Plaintiff acknow ledged that Microsoft can and does

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2 1        comment regarding patents or patented technology. Id. , Ex. A (W iley Dep. 165:20-171:9),

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22           Exs. N-P. She also acknowledged that it was not unusual to discuss and generate buzz abo ut

24           developing technologies; indeed, that was herjob. Id., Ex. A (Wiley Dep. 101:17-102:13,

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26           166:22-167:20). Plaintiff s job was to try to “craft the message based upon the story” and to

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28           that end, to so metimes “shape a reporter’s story” and “influence the reporter to tell the story

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30           you would want told.” Id. (Wiley Dep. 99:19-100 :12). Plaintiff also testified that it was the

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  • business owner’s and researcher’s decision to weigh the risks associated with commenting
  •  

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  • on a patent and ultimately to decide whether to comment publicly. (Wiley Dep. 99:12-

35           17, 100:15-101:1, 156:21-157:4). In this instance, the business owner was Rick Rashid,

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37           Microsoft’s Chief Research Officer. She did not, however, discuss the KUOW news story

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39           with Rashid. Id. (Wiley Dep. 157:5-10). She simply threw up a roadblock and then, in her

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41           lawsuit, contended that to have done otherwise would have vio lated a non-extent “policy.”

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  • 18 Even if the FAQs from Microsoft’s website ap plied to Plaintiff, they do not say that that
  • Company policy is never to comment on p Id. They state that an inventor wishing to blog
  • about a patent should submit the request to Microsoft coun Id., Ex. A (Wiley Dep. 159:12-161:2,
  • 163:14-164:14, 171:10-16), M. Plaintiff acknowledged that she denied the interview request
  • from KUOW without ever speaking to any Microsoft attorney. , Ex. A (Wiley Dep. 157:11-17).

 

2           disagreementwas not about compliance with Microsoft”policy” because there was no

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4    specific polic y directive. By the same token, even if there was a link between the KUOW

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6           interview and subsequent feedback about Plaintiff,  that feedback had  nothing to do with a

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8           “policy” abo ut commenting on patents because no such policy exists. P lai ntiffs claim fails.

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IO                                                         VI.       MICROSOFT’S COUNTERCLAIM

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12           A.        Plaintiff Violated Her Non-Disclosure Agreement

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  • In the Agreement Plaintiff entered into with Microsoft, she agreed, among other
  •  

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  • things , that “[a]t all times durin g [her] emplo yment and thereafter, [she] w[ould] not disclose

17           to anyone outside Microsoft, nor use for any purpose ot her than [her] work for Microsoft

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19           any confidential or proprietary technical, financial, marketing, … or business information or

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2 1           trade secrets of Microsoft.” Id., Ex. C. Plaintiff acknowledges that no one at Microsoft ever

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23           relieved her of these confidentiality obligations. Id. , Ex. A (Wile y Dep. 88:15-18). The

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  • Agree ment further provided that it constituted the “entire Agreement of the parties as to
  •  

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  • [Plaintiff s] employmen t at MICROSOFT” and that “any representations, promises, or

28           conditions in connection therewith not in writing and signed by both parties shall not be

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30           binding upon either party.” Id., Ex. C, at§ 16. As note d above, Plaintiff retained and

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32           provided to her co unsel several thousand pages of co nfidential Microsoft documents

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34           (including privileged co mmunications with Microsoft attorneys) because she believed these

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  • docu ments would aid her in pursuing this litigatio n agai nst Mic roso
  •  

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  • Here, there is no dispute that Plaintiff s employment with Microsoft was governed by

39           the Agreement. Plaintiff has not disputed the enforceability of the Agreement and, indeed,

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41           raised no contract defenses in her Answer to Microsoft’s counterclaim (thus waiving them).

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43           And at her deposition, Plain tiff admitted the facts establishing that she breached the Non­

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45           Disclosure Agree ment. See supra at 7.

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2           to anyone outside of Microsoft to further her own personal interests. Hamilton Deel., Ex. C,

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4    at § 2. As discussed above , Plaintiff admits that she copied and took for her own purpose

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6           and use Microsoft’s confidential documents- including documents containing privileged

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8           communications with Microsoft counsel- a nd disclosed these documents to third parties.

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IO           As a result, by its plain terms, Plaintiff has breached the Agreement. Indeed, such “self­

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11           help” discovery has been routinely condemned by courts from across the country. 19

13           Summary judgment in Microsoft’s favor is appropriate.

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15                          Moreover, as discusse d abo ve, in her Second Cause of Action for “Breachof

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17           Implied-In-Fact Contract,” Plaintiff now claims that Microsoft made and broke other

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19           promises to her-outside the Agreement itself-and is entitled to judgment against

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2 1         Microsoft as a result. In pursuing a claim premise d on alleged representations or promises

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22           not contained in a writing signed by both parties, Plaintiff again ignores and breaches the

24           Agreement, which expressly provides that it is the “entire agreement” between the patt ies.

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26           Microsoft has been damaged as a result; forced to expend significant resources defending

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28           against Plai ntiff s meritless breach of contract claim.

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30                                                                                VII.       CONCLUSION

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  • Microsoft respectfully requests that the Court grant its Motion for Summary
  •  

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  • Judg ment, dismiss Plaintiffs claims and enter judgment on Microsoft’s counterclai m

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  • 19 See, e.g., In re Marketin g Investors Co,p., 80W.3d 44, 48 (Tex. App. 1998) (employee
  • violated nondisclosure agreement by disclosing documents to his lawyers to assist legal claim);
  • Nessel rotte v. Allegheny Energy, Inc., 2008 WL 2858401 (D. Pa. July 22, 2008) (“[T]he proper
  • avenue for a former employee . . . to obtain privileged and/or confide ntial documents in support of
  • his or her claims is through the discovery process … , not by self-help”); Hodgson Texaco Inc.,
  • 440 2d 662, 663 (5th Cir. 197l) (“The employee had a legitimate remedy: he could have sought a
  • subpoena … to require the company to produce the records desired.”); Jefferies v. Harris County
  • Action Ass’n, 615 F.2d 1025, 1036-37(5th Cir. 1980) (“Jefferies has not shown any need for
  • surreptitious copying and disse mination of the documents…… [The company’s] interest in protecting
  • the confide ntiality of its records outweighs Jefferies’ right to protect her interests by opposing
  • perceived employment discriminati”).

 

 

 

 

 

 

 

 

  • DATED: September 19, 2012                                s/ Kevin Hamilton, WSBA No. 15648            
  • KHamilton@pcom

4                                                                Perkins Coie LLP

  • 1201 Third Avenue, Suite 4900

6                                                                                                               Seattle, WA 98101-3099

7                                                                                                               Tel.: 206.359.8000

8                                                                                                               Fax.: 206.359.9000

  • Attorneys for Defendant

IO                                                                                                               Microsoft Corporation

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I                                                         CERTIFICATE OF SERVICE

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4                          On September 19, 2012, I caused to be served upon counsel of record, at the address

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6           stated below, via the method of service indicated, a true and correct copy of the following

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8           documents:

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10                                                     MICROSOFT’S MOTION FOR SUMMARY JUDGMENT

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12                    Jerry R. McNaul

  •  

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  • McNaul Ebel Nawrot & Helgren, PLLC

15               600 University Street, Suite 2700

16           Seattle, WA 98101-3143

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18               Attorney for Plaintiff

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Ill Via hand delivery

C Via U.S. Mail, 1st Class, Postage Prepaid

C Via Overnight Delivery liJ Via Email Transmission C Via E-filing

 

21                          I certify under penalty of perjury under the laws of the State of Washington that the

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23           foregoing is true and correct.

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25                          DATED: September 19, 2012 in Seattle, Washington.

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31                                                                                                                                                   Carla Bone

  •  

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  • Legal Secretary

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