DONALDSON v. MICROSOFT CORP

MARSHA J. PEACHMAN, U.S. District Judge.

Pending before the Court are numerous motions to strike brought by defendant. Defendant has moved to strike various materials relied upon by plaintiffs in support of theji motion for class certification. Dkt. Nos. 144, 147, 150. Defendant has also brought a moti to strike materials submitted by plaintiffs in opposition to defendant's motion for partial summary judgment. Dkt. No. 185. Having reviewed all materials submitted by the parties, the Court ORDERS as follows:

1. Defendant's motions to strike portions of the materials relied upon by plaintiffs in support of their motion for class certification is GRANTED in part, DENIED in part and STRICKEN inpart at MOOT as follows:

a. Dkt. No. 144 is GRANTED in part, DENIED in part, and STRICKEN in part at MOOT.

Dkt. No. 14715 GRANTED in part and DENIED in part.

Dkt. No. 150 is GRANTED.

2. Defendant's motion to strike portions of the materials submitted by plaintiffs in opposition to defendant's motion for partial sununaryjudginent (Dkt. No. 185) is GRANTED in part and DENIED in part.

1. Motions to strike portions of the materials relied upon by plaintiffs' in support of their motion for class certification

A. Motion to strike portions c/the declarations submitted by named plaintiffs

i. The requirement that statements be sworn

Defendant notes, correctly, that declarations submitted as substantive evidence must be signed and sworn. 28 U.S.C. § 1746; Fed.R.Civ. p. 56. The declarations submitted by the named plaintiffs did not include a statement indicating that they were true under penalt) of perjury. Dkt. Nos. 112-114. Replacement declarations have since been submitted, whh contain the necessary foundational language. Dkt. Nos. 203-205. This portion of defendant's motion to strike is therefore MOOT. ii. The rule against submitting declarations in order to create a "sham" IVU of/act Defendant moves to strike portions of the named plaintiffs' declarations because tho declarations are contradicted by statements made by the same plaintiffs during their respective depositions. In the Ninth Circuit, "a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony."Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). Before striking such contradictory testimony, howevers Court "must make a factual determination that the contradiction was actually a "sham."' Id. 267. Contradictions which arise from "an honest discrepancy, a mistake, or the result of newly discovered evidence" do not constitute "sham" testimony and need not be stricken. The Court will also permit those statements which seek to explain, clarify, or elaborate up nconsistent prior testimony. Messick v. Horizon lndus.. Inc., 62 F.3d 1227, 1231 (9th Cir. 1995). For the most part, the inconsistencies between the depositions and declarations of th named plaintiffs can be characterized as clarifications. For that reason, the bulk of defendant's motion to strike on this ground is DENIED. There is a statement contained in the declaration of Ronald Douglass, however, which is so glaringly inconsistent with his deposition testimony that it must be stricken. Defendant's motion to strike portions of the declaration of Ronald Douglass is therefore GRANTED in part, and the following statemen is STRICKEN from Mr. Douglass' declaration:

¶ 2, lines 21-22: "I resigned because subjective and unfair performance evaluations cost me several promotions as well as equitable compensation." Mr. Douglass' statement that he resigned due to unfair performance evaluations is directly contradicted by his deposition testimony. During his deposition, Mr. Douglass authenticated several emails that he wrote towards the end of his tenure at Microsoft. ln those emails, Mr. Douglass waxed eloquent about the joys-and wealth- that Microsoft had brought to him. Specifically, Mr. Douglass said "1 left Microsoft because I simply didn't want to be there anymore... I had made my fortune in stock options and wanted to get out and do other things as well as make a lot more money in the form of a paycheck." Deposition of Ronald Douglass, 98:1-11, 98:21-99:11, 114:9-20, and Ex. I attached theretc

iii. The rule against hearsay

Defendant has moved to strike numerous portions of the declarations of the named plaintiffs on the grounds that these declarations contain hearsay statements. Defendant's motion to strike hearsay statements is GRANTED in part and DENIED in part. The following statements contained in the Declaration of Monique Donaldson are STRICKEN a inadmissible hearsay:

¶ 15, lines 2 1-22: "Epp said that Risk had been angry about the fact that I had transferred out of his organization. Epp explained that he anticipated Risk would retahate against me with a low score." ¶ 29 (7:25-8:3): "Dorsey told me that she understood because she had talked to many African Americans who had received low ratings and low compensation and that it was very difficult for her because Microsoft hired smart and capable employees who careers were impeded by discrimination."

iv. The rule requiring testimony to stem from personal knowledge. and barrin testimony based on opinion, conclusions, or speculation.

A witness may not testify absent a showing of personal knowledge of the subject matter. Fed.R.Evid. 602. Moreover, a lay witness may not offer his or her opinion unless is both "rationally based" on his or her perceptions and "helpful to a clear understanding o: the witness' testimony or the determination of a fact in issue." Such testimony must not be expert in nature. Fed.R.Evid. 701. Defendant has moved to strike portions of the declarations of the named plaintiffs for violations of Fed.R.Evid. 602 and 701. Defendant motion is DENIED in part and GRANTED in part. The following words and statements ar STRICKEN from plaintiffs' declarations and will not be considered by the Court: Declaration of Monique Donaldson:

¶ 14, lines 14-16: "Rather, it seemed to reflect his racial and gender biases and his discontent that I had been hired by another group in a management position." ¶ 15, line 22: "Epp explained that he anticipated Risk would retahate against me witi a low score." ¶ 16, line 3: "biased" ¶ 20, line 20: "who was not qualified for the position." ¶ 22, lines 8-9: "During these meetings, business about how the SOC was run and upcoming events in the SOC were discussed." ¶ 22, line 13: "and other women"

Declaration of Landruff E. Trent:

¶ 10, lines 23-25: "Moreover, his failure to include me let his peers know that he did not have confidence in my capabilities as Group Manager." ¶ 11, lines 8-9: "because they are tied very closely to the Directors and therefore support decisions made at the Director-level." ¶ 16, lines 15-17: "At a minimum, he also should have also (sic) reprimanded my other white counterparts who were actually responsible for the situation." ¶ 18, line 1: "Knowing that I would never gain Ingalls' confidence" ¶ 18, lines 3-4: "I believe Ingalls was discouraging new teams from hiring me." ¶ 20, lines 14-15: "and knew that I would receive a low performance review score as result"

Declaration of Ronald A. Douglass:

¶ 24, lines 12-13: "and was less qualified for the position." ¶ 32, lines 18-19: "Throughout my career at Microsoft, I was consistently paid less and given fewer stock options than similarly situated white employees."

v. The statute of limitations

Defendant seeks to strike all statements in the contested declarations which refer to events which predate the statute of limitations. Defendant brings this motion to strike on relevancy grounds.

Acknowledging the statute of limitations, plaintiffs seek to certify a class of § 19 claims dating from October 4, 1997, and Title VII claims dating from February 23, 19' See Plaintiffs' Motion for Class Certification, Dkt. No. 108.

The United States Supreme Court has held that "[a] discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may Constitute relevant background evidence in proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences." Unitec Air Lines v. Evans 431 U.S. 553, 558 (1977) (emphasis added).

Defendant has no liability for these past afleged acts of discrimination. Plaintiffs recognize this limitation and do not seek to impose liability. For the limited purpose of examining the existence of a pattern of unlawful conduct, the Court may consider the proffered evidence, Defendant's motion to strike this portion of the testimony is DENIED.

B. Motion to strike the declarations of potential additional class members

Defendant has brought motions to strike portions of each of the 17 declarations submitted by potential class members. Defendant brings motions to strike on the basis of hearsay and for speculation and/or impermissible opinion testimony. Those motions are GRANTED in part and DENIED in part, as set forth more fully below. In addition, defendant objects to a statement which arose from an attorneyZclient communication betwe the declarant and Microsoft counsel. This statement is found in the declaration of Erin Smith. Defendant's motion to strike these privileged communications is DENIED. Defendant also brings a motion to strike evidence of incidents that are barred by the statute limitations. As explained more fully in Section I(A)(v), above, that motion is DENIED.

i. Hearsay statements

The following portions of the declarations submitted by potential class members are hearsay and are STRICKEN:

Declaration of Nicole B. Arnelle:

¶ 4, lines 24-25: "All the attorneys acknowledge that I have the most difficult paralegal position."

Declaration of Brian Constable: ¶ 12, lines 14-15: "One woman, Sarah Hulquist, told me she left the group because o him."

Declaration of Darryl Lewis: ¶ 21, line 4: "he replied, "well, I guess they didn't want a brother to do this project."

Declaration of Erin Smith:

¶ 9, lines 14-15: "Amir told me that if I was his sister he would have advised me not take the position because Diefenbach was sexist."

Declaration of Lyzette Wallace:

¶ 4, lines 17-20: "When Tucker resigned, he told me that both he and Long-Walsh were leaving Microsoft because of difficulties they had working for David Pritchard (white), the head of the Product Group recruiting organization." ¶ 11, lines 17-18: "Stoltman-DeCroix told me that when her manager, David Pritcha (white), saw my comment, he was livid." ¶ 13, line 7: "because Pritchard did not like me and had it in for me." ¶ 16, 7:25-8:1: "Further, several Complaints against Nash had been made to Human Resources. Some of the Complaints had to deal with Nash lying about others."

Declaration of Margaret Worel:

¶ 4, lines 10-11: "Both had complained to me that their predominantly white male supervisors refused to recognize the quality of their work." ¶ 6, 2:23-3:2: "As the women left, they told me they were seeking opportunities for growth and recognition that they had not received in the Intelligent Search Group."

ii. Statements which do not stem from personal knowledge, and/or contain impermissible opinion, conclusions, or speculation.

The following statements are STRICKEN because there is no foundation to establist that they stem from personal knowledge, or because they contain imperrnissible opinion, conclusions, or speculation:

Declaration of Nicole L. Arnelle:

¶ 10, line 12: "intentionally" ¶ 10, lines 13-14: "Nevertheless, I suspect Gagnon kept her appointments with Martin." ¶ 10, line 16: "rather than work with me or assist me in getting additional training." ¶ 13, line 7: "It seemed more than coincidental that" ¶ 18, lines 15-17: "Moreover, the attitude of Acher and Gagnon has also influenced my peers. Both Bragg and Wood answer my questions by presuming that 1 am ignorant and I do not know how to do my job." ¶ 19, lines 23-24: "Archer (sic) seems to seek detailed feedback only when she is looking for reasons to criticize an employee."

Declaration of Don Bell:

¶ 11, line 6: "intentionally" ¶ 12, lines 24-25: "and then tried to justify the lower review score with comments thi ¶ had nothing to do with the quality of my work."

Declaration of Carolyn Codwell:

¶ 3, lines 2-3: "and appeared to be designed for me, "the black woman."' ¶ 8, line 13: "a surprise to many in the District" ¶ 8, lines 14-16: "Most people in the District were afraid to work for O'Doughtery because of his tyrannical management style." ¶ 8, lines l7-2O: "and as a result, she had a very shod career at Microsoft. O'Doughtery anticipated trouble from Grant from the start. He assumed that becaus she was African American, she was incompetent and therefore would be disruptive t the team." ¶ 8, 3:234:2: "These plans are usually designed with insunnountable objectives for. employee to complete such that the employee simply chooses to leave immediately rather than fail at achieving unattainable goals. Grant knew she was set up to fail from the beginning and chose to leave." ¶ 9, lines 6-8: "it wasn't an option for me because Ryner was not interested in mentoring me and overlooked the fact that I was worthy of promotion. I could not complain to anyone about this inequity because" ¶ 10, lines 15-17: "Had I done the same thing, I would have received a reprimand at minimum; however, management looked the other way because he was "Wol' and th managers, Bob Rechul (white) and Tony Ryner (white) were Woj "s neighbors." ¶ 11, line 21: "Rechul refused to champion Smith's success." ¶ 11, lines 22-23: "when promotion time came around, he was invisible." ¶ 12, lines 6-8: "they assumed I would do something to embarrass them and myself They worried about how they would be perceived, for their own careers, if' they sponsored a black woman." ¶ 13, line 19: "Like many blacks" ¶ 20, lines 5-6: "Giebutowski had to pay attention to me only because my customers liked me so much." ¶ 20, lines 8-10: "so because I was too black, and for not other reason, Webber's vie of me seemed tainted by the difficulty he was having with this other black employee ¶ 22, line 23: "Ribby seemed determined to exclude me." ¶ 22, 8:25-9:1: "If I had stayed on her team a few months longer, she would have succeeded in stifling my career."

Declaration of Brian Constable:

¶ 9, line 8: "As a result" ¶ 10, line 19: "because my salary was far below the rest of the Zoup." ¶ 15, line 7: "discriminatory" ¶ 15, lines 10-11: "he looked for reasons to pick apart work that was otherwise completed."

Declaration of Darryll Corpening: ¶ 10, lines 5-6: "as if she knew I would be terminated." ¶ 12, lines 12-13: "I subsequently learned that the African American employee Morn hired left within a year because of job dissatisfaction while on Morris's (sic) team."

Declaration of James Fort:

¶ 5, lines 14-16: "Wiley and Keane systematically endeavored to isolate me as I triec to figure out the technical issues related to the Contimental project." ¶ 6, lines 1-3: "My white counterparts would not have been asked to (sic) such a demanding and high risk first assignment without any guidance or assistance from more senior consultants on the project." ¶ 10, lines 13-15: "Her approach was to isolate him so that he would have to perforn under extreme pressure without guidance." a ¶ 15, lines 17-18: "1 believe this is because Pinckney is concerned about being criticized for promoting too many African Americans." ¶ 20, line 10: "the glass ceiling instituted by Houston managers."

Declaration of Endre Glenn:

¶ 9, lines 12-13: "Scu.rlock treated me unfairly based on race"

Declaration of Joanne Glenn:

¶ 6, lines 18-22: "Maxwell went out of her way to attempt to disqualify my achievements. For example, she called a meeting with her peers in Seattle to review pictures of my displays in an attempt to disqualify displays that she believed lacked quality. In fact, she attempted to alter the rules of the contest to focus on quality rather than quantity once she realized that I would likely win the contest."

Declaration of Richard Harris, Jr.:

¶ 12, lines 16-17: "his voice clearly indicated that he did not want me to have sixty days to interview." Declaration of Thna Homer: ¶ 6, lines 11-12: "as if he hadn't thought of me" ¶ 8, lines 4-5: "and discriminatory"

Declaration of Darryl Lewis:

¶ 24, lines 10-Il: "and written solely tojustify a 2.5 review score." ¶ 24, lines 16-17: "This was simply an after-the-fact attempt to justify an unfair 2.5 rating." ¶ 24, lines 18-19: "Thus, based on unfair and discriminatory prior ratings, I was bein treated even more unfairly."

Declaration of Don McGill:

¶ 14, 6:25-7:1: "1 believe that once Young found out they were considering me for U position, he put an end to my interviews."

Declaration of Bernadine Staten:

¶ 8, lines 2 1-22: "It is not until there is an incident within their group that they understand that for managing a different skill set is required." ¶ 8, line 25: "or not recognized their duty to act." ¶ 18, lines 5-7: "and even Statz and Stafford Mays (African American), a co-worker knew that Massengale would not have treated them that way."

Declaration of Lyzette Wallace:

¶ 5. 3:7-8: "Neither of these factors was correlated with an individual's likelihood of success on the job." ¶ 10, lines 3-4: "Not only did my co-workers fail to see the value of diversity" ¶ 10, lines 10-11: "It became clear to me that Microsoft paid lip service to diversity ¶ 6 efforts, but had no real commitment to hiring candidates of color." ¶ 11, line 21: "because of that comment" ¶ 16, lines 12-13: "Cless was very uncomfortable at (sic) ill at ease in having to do this." ¶ 16, lines 17-20: "1 believe based on Stoltman-DeCroix' earlier comment to me, described above, that Pritchard was motivated by racial bias and retaliation in his efforts to have my performance rating decreased."

Declaration of Leanidous C. Washington, ifi:

¶ 8, lines 8-10: "Archer gave me the impression that he felt that because Fort and is Jones were already Consultants, there was no need for another African American." ¶ 13, lines 15-16: "1 believe race was a factor in her decision because" ¶ 16, lines 11-12: "These were inappropriate assignments" ¶ 19. lines 9-10: "because everyone knew how long it had been since I had been assigned to a project." ¶ 19, line 12: "1 had effectively been discharged."

Declaration of Margaret Worel:

¶ 13, line 17: "and in part, because Fleig did not want to see my project succeed, " ¶ 15, lines 13-14: "as if I were presumptuous for thinking that Microsoft would pay for me to attend the conference and present my work."

iii. Statements which are protected by attorney-client privilege

Defendant has moved to strike a statement made by Erin Smith that purportedly recounts advice provided to Ms. Smith by Microsoft's in-house counsel. This portion of defendant's motion is DENIED. The contested statement reads: "the Legal Department confirmed my belief that it could not be used." Declaration of Erin Smith, ¶ 17, 6:2. The relevant issues of who made the contested statement and the basis of the opinion allegedly delivered are not clear from Ms. Smith's declaration. Defendant has not established that dii statement, made by an unknown person, was subject to attorney-client privilege.

iv. Statements which pre-date the statute of limitations

Defendant has moved to strike those portions of the declarations of potential class members which recount events that pre-date the proposed class period. For the reasons ma fully set forth in section I(A)(v), above, this portion of defendant's motion to strike is DENIED.

C. Motion to strike the corrected declaration of Charles Mann

Defendant seeks to strike paragraph 22 of the Corrected Declaration of Charles Man as well as exhibits K and L appended thereto. Dr. Mann is plaintiffs' expert. Exhibit K is. chaff comparing the demographic makeup of Microsoft's workforce with that of several other high tech companies. Exhibit L simply reproduces this data in the form of a bar chari Paragraph 22 describes what exhibits K and L purport to show.

Although the data reproduced in paragraph 22 and in exhibits K and L were provide by Microsoft during the course of discovery. there is no indication in the record that these materials have been authenticated. Absent the required foundation for these materials, defendant's motion to strike is GRANTED.

II. Motion to strike portions of the materials relied upon by plaintiffs in opposition to defendant's motion for partial summary judgment

Defendant has brought a motion to strike portions of the Declaration of Monique Donaldson filed in opposition to defendant's motion for partial summary judgment ("Donaldson S.J. Decl."). Defendant has also brought a motion to strike the Declaration of F. Frances Palmer filed in opposition to defendant's motion for partial summaly judgment ("Palmer 8.3. Decl."). These motions allege that the subject declarations contain impermissible hearsay, speculation, and contradictions of prior sworn deposition testimony. With the exception of the following portion of the Donaldson declaration, all other portions of these motions to strike are DENIED. The motion to strike the Donaldson declaration is GRANTED in part.

Prior to submitting her declaration in opposition to defendant's motion for summary judgment, Ms. Donaldson signed an affidavit in support of her EEOC charge. Donaldson S.J. Decl. Ex. B. In her declaration, Ms. Donaldson mis-characterizes her affidavit testimony, and attributes to it content which is simply missing. The Court will allow the EEOC affidavit to speak for itself, and will not permit Ms. Donaldson to subsequently interpret the meaning of the affidavit Accordingly, the following portion of Ms. Donaldson's declaration is STRICKEN:

¶ 2, lines 4-5: "in pages 1 and 2, I specifically complained that a forced bell curve used in the evaluation process was one of the practices that caused me to be paid les: The clerk of the Court is directed to distribute this Order to all counsel of record.

III. CONCLUSION

Defendant's motions to strike portions of the materials relied upon by plaintiffs in support of their motion for class certification is GRANTED in part, DENIED in part, and STRICKEN in part at MOOT as follows:

a. Dkt. No. 144 is GRANTED in part, DENIED in part, and STRICKEN in part

MOOT.

b. Dkt. No. 147 is GRANTED in part and DENIED in part.

c. Dkt. No. l5O is GRANTED.

Defendant's motion to strike portions of the materials submitted by plaintiffs in opposition to defendant's motion for partial summary judgment (Dkt. No. 185) is GRANTED in part and DENIED in part.

The clerk of the Court is directed to distribute a copy of this Order to all counsel of record in this matter, and to all counsel of record and pro se parties in the matter of Jackson et al. v. Microsoft Corp., C01-775P, and Odom v. Microsoft Corp., C01-1632P.