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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

10 KATHERINE MOUSSOURIS, on behalf

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of herself and a class of those similarly situated,

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Plaintiff,

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v.

14 MICROSOFT CORPORATION

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Defendant.

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Case No. CLASS ACTION COMPLAINT (Trial by Jury Demanded)

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Plaintiff Katherine Moussouris (“Plaintiff”), on behalf of herself and all others similarly

18 situated, alleges as follows:

19

SUMMARY OF CLAIMS

20

1. Plaintiff brings this action alleging violations of Title VII of the Civil Rights Act

21 of 1964, 72 U.S.C. §§ 2000e et seq. (“Title VII”); and the Washington Law Against 22 Discrimination, Rev. Code Wash. 49.60.010. et seq., to challenge Microsoft Corporation’s 23 (“Microsoft”) continuing policy, pattern and practice of sex discrimination against female

24 employees in technical and engineering roles (“female technical employees”) with respect to 25 performance evaluations, pay, promotions, and other terms and conditions of employment. 26 Microsoft has implemented these policies and practices despite knowing that they have a 27

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1 longstanding disparate impact on female technical employees. Microsoft also retaliates against

2 female technical employees who complain about this discrimination.

3

2. Microsoft is a global provider of software and software-related services. In 2014,

4 Microsoft generated $93.6 billion dollars in net revenue and $12.2 billion dollars in net income.

5 Microsoft is a major employer, with a headcount of over 117,000 employees in 2015, many of

6 whom are technical employees.

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3. As a result of Microsoft’s policies, patterns, and practices, female technical

8 employees receive less compensation and are promoted less frequently than their male

9 counterparts. Microsoft’s company-wide policies and practices systematically violate female

10 technical employees’ rights and result in the unchecked gender bias that pervades its corporate

11 culture. The disadvantage to female technical employees in pay and promotion is not isolated or

12 exceptional, but rather the regular and predictable result of Microsoft’s policies and practices and

13 lack of proper accountability measures to ensure fairness.

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4. In addition to bringing this action on her own behalf, Plaintiff also brings this

15 action on behalf of a class of similarly situated current and former female technical employees

16 employed by Microsoft in the United States (“the Class”), in order to end Microsoft’s

17 discriminatory policies and practices and to make the Class whole.

18 19 Plaintiff

THE PARTIES

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5. Plaintiff Katherine Moussouris is a woman who lives in Kirkland, Washington.

21 She is a citizen of the United States.

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6. Plaintiff was employed by Microsoft from approximately April 2007 to May 30,

23 2014 in Redmond, Washington.

24 Defendant

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7. Defendant Microsoft is a corporation formed under the laws of the State of

26 Washington with a place of business within the city of Redmond, King County, at One Microsoft

27 Way, Redmond, Washington 98052-7329.

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8. Upon information and belief, Microsoft maintains control, oversight, and direction

2 over the operation of its facilities, including its employment practices.

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9. During all relevant times, Microsoft was Plaintiff’s employer within the meaning

4 of all applicable statutes.

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10. At all times pertinent hereto, Microsoft has employed more than five hundred

6 people.

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JURISDICTION AND VENUE

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11. This Court has original subject matter jurisdiction over Title VII claims pursuant

9 to 28 U.S.C. § 1331 and 1343 and 42 U.S.C. § 2000e-5(f)(3), because they arise under the laws of

10 the United States and are brought to recover damages for deprivation of equal rights.

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12. This Court has jurisdiction over the Washington Law Against Discrimination

12 claims under the Class Action Fairness Act, 28 U.S.C. § 1332(d), because this is a class action in

13 which: (a) there are 100 or more members in the proposed class; (b) at least some members of the

14 proposed class have a different citizenship from Defendant; and (c) the claims of the proposed

15 class members exceed $5,000,000 in the aggregate.

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13. In addition, this Court has supplemental jurisdiction over the Washington Law

17 Against Discrimination claims under 28 U.S.C. § 1367, because they arise from a common

18 nucleus of operative facts with the federal claims and are so related to the federal claims as to

19 form part of the same case or controversy under Article III of the United States Constitution.

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14. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42

21 U.S.C. § 2000e-5(f)(3), because Microsoft maintains offices in this district, conducts business in

22 this district, and a substantial part of the events and omissions giving rise to the claims alleged

23 herein occurred in this district, and because the alleged unlawful employment practices were

24 committed here, and employment records relevant to those practices are maintained and

25 administered here.

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15. The Western District of Washington has personal jurisdiction over Microsoft

27 because it maintains offices in this District, does business in Washington and in this district, and

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1 because many of the acts complained of and giving rise to the claims alleged herein occurred in

2 Washington and in this District.

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16. Plaintiff has exhausted her administrative remedies and complied with all statutory

4 prerequisites to her Title VII claims. Plaintiff filed a charge of gender discrimination and

5 retaliation individually and on behalf of all similarly situated female technical employees

6 employed by Microsoft with the Equal Employment Opportunity Commission (“EEOC”) on May

7 13, 2014. By notice dated June 29, 2015, the EEOC issued a Notice of Right to Sue. This

8 complaint is made within ninety days of the Notice of Right to Sue.

9

FACTUAL ALLEGATIONS

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17. Microsoft maintains uniform employment, compensation, performance review,

11 and promotion policies throughout the United States. Microsoft also cultivates and promotes a

12 common corporate culture.

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18. Microsoft’s offices throughout the U.S. use a common organizational structure,

14 organizing technical employees by levels.

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19. Microsoft discriminates against female technical employees in (1) performance

16 evaluations; (2) compensation; and (3) promotions.

17 Performance Evaluations

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20. Microsoft uses uniform, unvalidated, and unreliable procedures for evaluating

19 employee performance that systematically undervalue female technical employees relative to

20 their similarly situated male peers.

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21. For example, for many years and continuing through 2013, Microsoft used a

22 companywide “stack ranking” system for evaluating employee performance, which force ranked

23 employees from best to worst using a performance rating from 1 through 5, with 1 being best, and

24 5 being worst. Only 20% of employees could receive a 1, 20% a 2, 40% a 3, 13% a 4, and the

25 remaining 7% received a 5. This stack ranking process systematically undervalued female

26 technical employees compared to similarly situated male employees because, among other

27 reasons, it meant that lower ranked employees were inferior and should be paid less and promoted

28 less frequently regardless of their actual contributions to Microsoft. This forced ranking process

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1 took place twice each year, with the mid-year stack ranking used as a mechanism to determine

2 mid-year promotions, and the end of year stack ranking used for compensation and year-end

3 promotion decisions.

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22. The numerical performance ratings were critical because Microsoft used the

5 ratings to determine the amount of employees’ bonuses and raises, and to determine whom it

6 would promote.

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23. Upon information and belief, female technical employees tended to receive lower

8 scores than their male peers, despite having had equal or better performance during the same

9 performance period.

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24. From 2014 to the present, Microsoft has used a similarly unvalidated, and

11 unreliable discriminatory performance evaluation procedure that systematically undervalues

12 female technical employees relative to their male peers, and results in lower scores than men in

13 similar positions with no better or worse objective performance.

14 Compensation

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25. Microsoft employs uniform, unvalidated, and unreliable procedures for

16 determining employees’ compensation that disparately impact female professionals.

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26. Microsoft determines employees’ compensation in large part by their performance

18 review score. Because female technical employees systematically receive worse review scores,

19 they earn less than their male peers.

20 Promotions

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27. Microsoft also employs common, unvalidated, unreliable, and discriminatory

22 procedures for selecting employees for promotion.

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28. Microsoft does not apply legitimate or objective criteria for promotions amongst

24 technical employees. Promotions are not determined by objective performance measures.

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29. Instead, an employee’s manager must recommend him or her for promotion, and

26 then the promotion must be approved by a small, centrally-controlled group of senior managers.

27 To the extent that managers consider the employees’ performance scores in the promotion

28 process, the discriminatory impact of that biased, invalid system is further compounded in

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1 promotions. Overall, Microsoft promotes an overwhelmingly disproportionate number of men,

2 and passes over equally or more qualified women.

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CLASS ACTION ALLEGATIONS

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30. Plaintiff brings this class action pursuant to Federal Rules of Civil Procedure

5 23(a), (b)(2), and (c)(4) seeking liability-phase injunctive and declaratory relief on behalf of a

6 Class of all female technical employees employed by Microsoft in the United States at any time

7 from September 16, 2009 through the resolution of this action for claims under Title VII.

8 Plaintiff also brings this class action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3)

9 seeking backpay, monetary damages and other make-whole relief on behalf of a Class of all

10 female technical employees employed by Microsoft in the United States at any time from

11 September 16, 2009 through the resolution of this action for claims under Title VII. Plaintiff

12 reserves the right to amend the definition of the Class based on discovery or legal developments.

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31. Plaintiff also brings this class action pursuant to Federal Rules of Civil Procedure

14 23(a), (b)(2), and (c)(4) seeking liability-phase injunctive and declaratory relief on behalf of a

15 Class of all female technical employees employed by Microsoft in the United States at any time

16 from September 16, 2012 through the resolution of this action for claims under the Washington

17 Law Against Discrimination. Plaintiff also brings this class action pursuant to Federal Rules of

18 Civil Procedure 23(a) and (b)(3) seeking backpay, monetary damages and other make-whole

19 relief on behalf of a Class of all female technical employees employed by Microsoft in the United

20 States at any time from September 16, 2012 through the resolution of this action for claims under

21 the Washington Law Against Discrimination. Plaintiff reserves the right to amend the definition

22 of the Class based on discovery or legal developments.

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32. Plaintiff is a member of the Class she seeks to represent.

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33. The members of the Class identified herein are so numerous that joinder of all

25 members is impracticable. Microsoft had a headcount of over 117,000 employees in 2015.

26 Although Plaintiff does not know the precise number of female technical employees at Microsoft,

27 the number is far greater than can be feasibly addressed through joinder.

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34. There are questions of law and fact common to the Class, and these questions

2 predominate over any questions affecting only individual members. Common questions include:

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a. whether Microsoft’s policies and practices discriminate against female

4 technical employees;

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b. whether Microsoft’s policies and practices violate Title VII and/or the

6 Washington Law Against Discrimination;

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c. whether Microsoft’s performance evaluation system discriminates against

8 female technical employees;

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d. whether Microsoft’s compensation system discriminates against female

10 technical employees;

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e. whether Microsoft’s promotion system discriminates against female

12 technical employees;

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f. whether Microsoft has failed to implement policies and procedures to

14 prevent retaliation against employees who challenge gender discrimination in the workplace, has

15 failed to address complaints of gender discrimination in the workplace, and has failed to conduct

16 proper investigations of same; and

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g. whether equitable remedies, injunctive relief, compensatory damages, and

18 punitive damages for the Class are warranted;

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35. Plaintiff’s claims are typical of the claims of the Class.

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36. Plaintiff will fairly and adequately represent and protect the interests of the Class.

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37. Plaintiff has retained counsel competent and experienced in complex class actions

22 and employment discrimination litigation.

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38. Class certification is appropriate pursuant to Federal Rule of Civil Procedure

24 23(b)(2) because Microsoft has acted and/or refused to act on grounds generally applicable to the

25 Class, making appropriate declaratory and injunctive relief with respect to Plaintiff and the Class

26 as a whole. The Class Members are entitled to injunctive relief to end Microsoft’s common,

27 uniform, unfair, and discriminatory policies and practices.

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39. Class certification is also appropriate pursuant to Federal Rule of Civil Procedure

2 23(b)(3) because common questions of fact and law predominate over any questions affecting

3 only individual members of the Class, and because a class action is superior to other available

4 methods for the fair and efficient adjudication of this litigation. The Class Members have been

5 damaged and are entitled to recovery as a result of Microsoft’s common, unfair, and

6 discriminatory policies and practices. Microsoft has computerized account data, payroll data, and

7 personnel data that will make calculation of damages for specific Class Members relatively

8 simple. The propriety and amount of punitive damages are based on Microsoft’s common

9 conduct, making these issues common to the Class.

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CLAIMS OF NAMED PLAINTIFF

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40. Plaintiff Moussouris was hired by Microsoft in April of 2007 as a Security

12 Program Manager in the Trustworthy Computing Group. During her tenure at Microsoft, Plaintiff

13 consistently achieved and usually exceeded her performance goals, and made significant

14 contributions to Microsoft’s business. Yet, as a result of Microsoft’s forced ranking process,

15 Plaintiff received lower performance ratings than her male peers, despite having better

16 performance during the same performance period.

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41. For example, in May 2012, Plaintiff’s manager told her that she had outstanding

18 performance and had earned a rating of 2. However, after the forced ranking process, she instead

19 received a 3.

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42. Similarly, in May 2013, Plaintiff’s manager again commended her performance

21 and told her she deserved a 1. After the forced ranking process, Plaintiff received a 2.

22

43. Microsoft also paid Plaintiff less than her male peers throughout her tenure at the

23 company.

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44. Microsoft also discriminated against Plaintiff in its promotion process. From 2010

25 to 2014, Microsoft passed her over for promotions in favor of less qualified and less experienced

26 men.

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45. For example, in 2012, while Plaintiff was on maternity leave, she was not put

28 forward for a promotion to Level 65, Principal Security Strategist, for which she was eligible and

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1 eminently well-qualified. In the year prior, Plaintiff had been responsible for an industry-leading

2 initiative that resulted in the highest-rated news announcement for the Microsoft Trustworthy

3 Computing Group. However, Microsoft instead selected Plaintiff’s male colleague, who was less

4 qualified, to be her manager. Plaintiff’s managers from 2011 through 2013 told her that although

5 the impact, quality, and scope of her work had been “Principal-level” for years, certain managers

6 did not like her manner or style, and so Microsoft did not promote her. Plaintiff was subject to an

7 invalid and gender biased selection process.

8

46. In 2013, Plaintiff was again passed over for promotion to Level 65, despite

9 newsworthy new initiatives she created that are still referred to in the security industry. Instead,

10 Microsoft promoted two less qualified men in the Trustworthy Computing Group, who had not

11 performed the same scope of work as Plaintiff, nor obtained the same level of recognition and

12 accomplishment in the security industry.

13

47. Plaintiff also saw other female technical employees passed over for promotion in

14 favor of less-qualified men. For example, when the director of the Trustworthy Computing

15 Group left, two Principal-level women who had worked for him were not even considered or

16 given the chance to interview for the role. Instead, Microsoft hired a less qualified male from

17 outside the company with little to no relevant work experience in managing the specifics of large

18 scale security response in a company with the size and scope of Microsoft.

19

48. In 2008, Plaintiff complained about the Director of the Trustworthy Computing

20 Group, who was sexually harassing other women in the Group. Microsoft investigated and

21 concluded that he had in fact been sexually harassing female employees. Yet Microsoft’s

22 response was to re-assign this male Director to another part of the Trustworthy Computing Group,

23 while retaining his title and influence. Before he was transferred, however, he retaliated against

24 Plaintiff by assigning her a low bonus. Plaintiff complained about retaliation, but Microsoft took

25 no action. Since that time, the same Director has been promoted to Senior Director.

26

49. Starting in 2013, Plaintiff’s manager systematically undermined Plaintiff by

27 reducing the scope of her role, even though her high performance never changed. For example,

28 he took away several of Plaintiff’s responsibilities and re-assigned them to a less qualified and

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1 less experienced man, two levels below Plaintiff. He also began to assign Plaintiff low-level

2 tasks that he never asked men at Plaintiff’s level to do. Plaintiff complained about this unfair

3 treatment, but Microsoft took no action.

4

50. Due to the nature and extent of the unfair treatment Plaintiff received, and

5 Microsoft’s continued refusal to take any corrective action to address it, Plaintiff was forced to

6 resign on May 30, 2014.

7

CAUSES OF ACTION

8

FIRST CLAIM FOR RELIEF

9

Intentional Discrimination

(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.)

10

(On Behalf of Plaintiff and the Class)

11

51. Plaintiff incorporates the preceding paragraphs as alleged above.

12

52. This claim is brought by Plaintiff on behalf of herself and the Class she seeks to

13 represent. Plaintiff has filed a timely charge with the EEOC and has thus exhausted her

14 administrative remedies.

15

53. Microsoft has engaged in an intentional, company-wide, and systematic

16 policy, pattern, and/or practice of discrimination against its female technical employees.

17 Microsoft has intentionally discriminated against Plaintiff and the Class in violation of Title VII

18 by, among other things:

19

a. Utilizing a biased performance rating system;

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b. Utilizing a biased compensation system;

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c. Utilizing a biased promotion system; and

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d. Failing to take reasonable and adequate steps to prevent and correct the use

23 of standardless, unvalidated, and/or illegitimate criteria to determine the terms and conditions of

24 employment.

25

54. These company-wide policies are intended to and do have the effect of:

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a. Denying Plaintiff and Class Members business opportunities because of

27 their gender;

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b. Compensating them less because of their gender;

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c. Failing to promote them because of their gender;

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d. Evaluating their performance more negatively because of their gender; and

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e. Providing them with inferior terms and conditions of employment as a

4 result of discriminatory performance measures that systematically disadvantaged them because of

5 their gender.

6

55. The discriminatory acts that constitute Microsoft’s pattern and/or practice of

7 discrimination have occurred both within and outside the liability period in this case.

8

56. As a direct result of Microsoft’s discriminatory policies and/or practices as

9 described above, Plaintiff and the Class have suffered damages including, but not limited to, lost

10 past and future income, compensation, and benefits.

11

57. The foregoing conduct constitutes illegal, intentional discrimination and

12 unjustified disparate treatment prohibited by 42 U.S.C. §§ 2000e et seq.

13

58. Plaintiff requests relief as hereinafter described.

14

SECOND CLAIM FOR RELIEF

15

Disparate Impact Discrimination

(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.)

16

(On Behalf of Plaintiff and the Class)

17

59. Plaintiff incorporates the preceding paragraphs as alleged above.

18

60. This claim is brought by Plaintiff on behalf of herself and the Class she seeks to

19 represent. Plaintiff has timely filed a charge with the EEOC and has thus exhausted her

20 administrative remedies.

21

61. Microsoft’s reliance on illegitimate and unvalidated systems and criteria to

22 evaluate employee performance, set compensation, and select individuals for promotion, and

23 determine other terms and conditions of employment, have an adverse impact on female technical

24 employees in violation of Title VII and are not, and cannot be, justified by business necessity.

25 Even if such system and/or policies could be justified by business necessity, less discriminatory

26 alternatives exist and would equally serve any alleged necessity.

27

62. Microsoft has maintained these discriminatory policies, patterns, and/or practices

28 both within and outside the liability period in this case.

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63. As a direct result of Microsoft’s discriminatory policies and/or practices as

2 described above, Plaintiff and the Class have suffered damages including, but not limited to, lost

3 past and future income, compensation, and benefits.

4

64. The foregoing policies, patterns, and/or practices have an unlawful disparate

5 impact on women in violation of 42 U.S.C. §§ 2000e et seq.

6

65. Plaintiff requests relief as hereinafter described.

7

THIRD CLAIM FOR RELIEF

8

Intentional Discrimination

(Washington Law Against Discrimination, Rev. Code Wash. 49.60.010. et seq.)

9

(On Behalf of Plaintiff and the Class)

10

66. Plaintiff incorporates the preceding paragraphs as alleged above.

11

67. This claim is brought by Plaintiff on behalf of herself and the Class she seeks to

12 represent.

13

68. Microsoft has engaged in an intentional, company-wide, and systematic

14 policy, pattern, and/or practice of discrimination against its female technical employees.

15 Microsoft has intentionally discriminated against Plaintiff and the Class in violation of the

16 Washington Law Against Discrimination by, among other things:

17

a. Utilizing a biased performance rating system;

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b. Utilizing a biased compensation system;

19

c. Utilizing a biased promotion system; and

20

d. Failing to take reasonable and adequate steps to prevent and correct the use

21 of standardless, unvalidated, and/or illegitimate criteria to determine the terms and conditions of

22 employment.

23

69. These company-wide policies are intended to and do have the effect of:

24

a. Denying Plaintiff and Class Members business opportunities because of

25 their gender;

26

b. Compensating them less because of their gender;

27

c. Failing to promote them because of their gender;

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d. Evaluating their performance more negatively because of their gender; and

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e. Providing them with inferior terms and conditions of employment as a

2 result of discriminatory performance measures that systematically disadvantaged them because of

3 their gender.

4

70. The discriminatory acts that constitute Microsoft’s pattern and/or practice of

5 discrimination have occurred both within and outside the liability period in this case within the

6 State of Washington, and the discriminatory policies, patterns, and practices have had a

7 discriminatory impact on the female employees of Microsoft within the State of Washington.

8

71. As a direct result of Microsoft’s discriminatory policies and/or practices as

9 described above, Plaintiff and the Class have suffered damages including, but not limited to, lost

10 past and future income, compensation, and benefits.

11

72. The foregoing conduct constitutes illegal, intentional discrimination and

12 unjustified disparate treatment prohibited by the Washington Law Against Discrimination, Rev.

13 Code Wash. 49.60.010. et seq.

14

73. Plaintiff requests relief as hereinafter described.

15

FOURTH CLAIM FOR RELIEF

16

Disparate Impact Discrimination

(Washington Law Against Discrimination, Rev. Code Wash. 49.60.010. et seq.)

17

(On Behalf of Plaintiff and the Class)

18

74. Plaintiff incorporates the preceding paragraphs as alleged above.

19

75. This claim is brought by Plaintiff on behalf of herself and the Class she seeks to

20 represent.

21

76. Microsoft’s reliance on illegitimate and unvalidated systems and criteria to

22 evaluate employee performance, set compensation, and select individuals for promotion, and

23 determine other terms and conditions of employment, have an adverse impact on female technical

24 employees in violation of the Washington Law Against Discrimination and are not, and cannot

25 be, justified by business necessity. Even if such system and/or policies could be justified by

26 business necessity, less discriminatory alternatives exist and would equally serve any alleged

27 necessity.

28

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1

77. Microsoft has maintained these discriminatory policies, patterns, and/or practices

2 both within and outside the liability period in this case in this case within the State of

3 Washington, and the discriminatory policies, patterns, and practices have had a discriminatory

4 impact on the female employees of Microsoft within the State of Washington.

5

78. As a direct result of Microsoft’s discriminatory policies and/or practices as

6 described above, Plaintiff and the Class have suffered damages including, but not limited to, lost

7 past and future income, compensation, and benefits.

8

79. The foregoing policies, patterns, and/or practices have an unlawful disparate

9 impact on women in violation of the Washington Law Against Discrimination, Rev. Code Wash.

10 49.60.010. et seq.

11

80. Plaintiff requests relief as hereinafter described.

12

FIFTH CLAIM FOR RELIEF

13

Retaliation

(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.)

14

(On Behalf of Plaintiff Moussouris Individually)

15

81. Plaintiff incorporates the preceding paragraphs as alleged above.

16

82. This claim is brought by Plaintiff Moussouris individually. Plaintiff has timely

17 filed a charge with the EEOC alleging retaliation claims and has thus exhausted her

18 administrative remedies.

19

83. Plaintiff engaged in protected activities, including making internal complaints of

20 unlawful discrimination and filing charges with the EEOC complaining of Microsoft’s

21 discriminatory policies and practices.

22

84. Microsoft took adverse actions against Plaintiff with the purpose of retaliating

23 against her because of her participation in protected activities, and Plaintiff suffered damages as a

24 result of that conduct.

25

85. Plaintiff requests relief as hereinafter described.

26

27

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1

SIXTH CLAIM FOR RELIEF

2

Retaliation

(Washington Law Against Discrimination, Rev. Code Wash. 49.60.010. et seq.

3

(On Behalf of Plaintiff Moussouris Individually)

4

86. Plaintiff incorporates the preceding paragraphs as alleged above.

5

87. This claim is brought by Plaintiff Moussouris individually.

6

88. Plaintiff engaged in protected activities, including making internal complaints of

7 unlawful discrimination and filing charges with the EEOC complaining of Microsoft’s

8 discriminatory policies and practices.

9

89. Microsoft took adverse actions against Plaintiff with the purpose of retaliating

10 against her because of her participation in protected activities during the liability period in the

11 State of Washington, and Plaintiff suffered damages in the State of Washington as a result of that

12 conduct.

13

90. Plaintiff requests relief as hereinafter described.

14

PRAYER FOR RELIEF

15

91. WHEREFORE, Plaintiff and the Class pray for relief as follows:

16

a. Certification of the case as a class action on behalf of the proposed Class;

17

b. Designation of Representative Plaintiff Moussouris as representative of the

18 Class;

19

c. Designation of Representative Plaintiff’s counsel of record as Class

20 Counsel;

21

d. A declaratory judgment that the practices complained of herein are

22 unlawful and violate 42 U.S.C. §§ 2000e, et seq.; and the Washington Law Against

23 Discrimination, Rev. Code Wash. 49.60.010. et seq.;

24

e. A preliminary and permanent injunction against Microsoft and its officers,

25 agents, successors, employees, representatives, and any and all persons acting in concert with

26 them, from engaging in policies, patterns, and/or practices that discriminate against Plaintiff or

27 the Class because of their gender or participation in this lawsuit;

28

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f. An order that Microsoft institute and carry out policies, practices, and

2 programs that provide equal employment opportunities for all employees regardless of gender,

3 and that it eradicate the effects of their past and present unlawful employment practices;

4

g. An order requiring Microsoft to develop and institute accurate and

5 validated standards for evaluating performance, determining pay, and making promotion

6 decisions;

7

h. An order appointing a monitor to ensure that Microsoft complies with the

8 injunction provisions of any decree that the Court orders;

9

i. An order retaining jurisdiction over this action to ensure that Microsoft

10 complies with such a decree;

11

j. An order restoring Plaintiff and Class Members to their rightful positions at

12 Microsoft (i.e., reinstatement), or in lieu of reinstatements, an order for front pay benefits;

13

k. Back pay (including interest and benefits) for the Representative Plaintiff

14 and Class Members;

15

l. All damages sustained as a result of Microsoft’s conduct, including

16 damages for emotional distress, humiliation, embarrassment, and anguish, according to proof;

17

m. Exemplary and punitive damages in an amount commensurate with

18 Microsoft’s ability to pay and to deter future conduct;

19

n. Costs incurred herein, including reasonable attorneys’ fees to the extent

20 allowable by law;

21

o. Pre-judgment and post-judgment interest, as provided by law; and

22

p. Such other and further legal and equitable relief as this Court deems

23 necessary, just, and proper.

24

JURY DEMAND

25

92. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands

26 a trial by jury in this action.

27

28

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1 2 Dated: September 16, 2015 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1267662.4

Respectfully submitted,
By: ___________________________________ Sharon M. Lee
Sharon M. Lee (Wash. Bar No. 37170) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 2101 Fourth Avenue, Suite 1900 Seattle, Washington 98121 Telephone: (206) 739-9059 Facsimile: (415) 956-1008 E-Mail: slee@lchb.com
Kelly M. Dermody (pro hac vice forthcoming) Anne B. Shaver (pro hac vice forthcoming) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-Mail: kdermody@lchb.com E-Mail: ashaver@lchb.com
Adam T. Klein (pro hac vice forthcoming) Cara E. Greene (pro hac vice forthcoming) Ossai Miazad (pro hac vice forthcoming) OUTTEN & GOLDEN LLP 3 Park Avenue, 29th Floor New York, New York 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005 E-Mail: ATK@outtengolden.com E-Mail: CEG@outtengolden.com E-Mail: OM@outtengolden.com
Jahan C. Sagafi (pro hac vice forthcoming) Katrina L. Eiland (pro hac vice forthcoming) OUTTEN & GOLDEN LLP One Embarcadero Center, 38th Floor San Francisco, California 94111 Telephone: (415) 638-8800 Facsimile: (415) 638-8810 E-Mail: jsagafi@outtengolden.com E-Mail: keiland@outtengolden.com
Attorneys for Plaintiffs and the proposed Class

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CLASS ACTION COMPLAINT

 
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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

10 KATHERINE MOUSSOURIS, HOLLY

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MUENCHOW, and DANA PIERMARINI, on behalf of themselves and a class of

12 those similarly situated,

13

Plaintiffs,

14

v.

15 MICROSOFT CORPORATION

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Defendant.

Case No. 15 cv 1483 (JLR)
SECOND AMENDED CLASS ACTION COMPLAINT
(Trial by Jury Demanded)

17

Plaintiffs Katherine Moussouris, Holly Muenchow, and Dana Piermarini (“Plaintiffs”), on

18 behalf of themselves and all others similarly situated, allege as follows:

19

SUMMARY OF CLAIMS

20

1. Plaintiffs bring this action alleging violations of Title VII of the Civil Rights Act

21 of 1964, 72 U.S.C. §§ 2000e et seq. (“Title VII”), and the Washington Law Against 22 Discrimination, Rev. Code Wash. § 49.60.010. et seq., to challenge Microsoft Corporation’s

23 (“Microsoft”) continuing policy, pattern, and practice of sex discrimination against female

24 employees in technical and engineering roles, including technical sales and services positions 25 (“female technical employees”) with respect to performance evaluations, pay, promotions, and

26 other terms and conditions of employment. Microsoft has implemented these policies and

27 practices despite knowing that they have a longstanding disparate impact on female technical 28

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1 employees. Microsoft also retaliates against female technical employees who complain about this

2 discrimination.

3

2. Microsoft is a global provider of software and software-related services as well as

4 hardware devices. In 2015, Microsoft generated $93.6 billion dollars in net revenue and $12.2

5 billion dollars in net income. Microsoft is a major employer, with a headcount of approximately

6 118,000 full-time employees in 2015, many of whom are technical employees.

7

3. As a result of Microsoft’s policies, patterns, and practices, female technical

8 employees receive less compensation and are promoted less frequently than their male

9 counterparts. Microsoft’s company-wide policies and practices systematically violate female

10 technical employees’ rights and result in the unchecked gender bias that pervades its corporate

11 culture. The disadvantage to female technical employees in pay and promotion is not isolated or

12 exceptional, but rather the regular and predictable result of Microsoft’s policies and practices and

13 lack of proper accountability measures to ensure fairness.

14

4. In addition to bringing this action on behalf of themselves, Plaintiffs also bring this

15 action on behalf of a class of similarly situated current and former female technical employees

16 employed by Microsoft in the United States (the “Class”), in order to end Microsoft’s

17 discriminatory policies and practices and to make the Class whole.

18 19 Plaintiff Katherine Moussouris

THE PARTIES

20

5. Plaintiff Katherine Moussouris is a woman who lives in Kirkland, Washington.

21 She is a citizen of the United States.

22

6. Ms. Moussouris was employed by Microsoft from approximately April 2007 to

23 May 30, 2014 in Redmond, Washington. 24 Plaintiff Holly Muenchow

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7. Plaintiff Holly Muenchow is a woman who lives in Woodinville, Washington.

26 She is a citizen of the United States.

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8. Ms. Muenchow has been employed by Microsoft since approximately September

28 2002 in Redmond, Washington.

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1 Plaintiff Dana Piermarini

2

9. Plaintiff Dana Piermarini is a woman who lives in Leesburg, Virginia. She is a

3 citizen of the United States.

4

10. Ms. Piermarini has been employed by Microsoft since approximately September

5 2006. 6 Defendant

7

11. Defendant Microsoft is a corporation formed under the laws of the State of

8 Washington with its corporate headquarters within the city of Redmond, King County, at One

9 Microsoft Way, Redmond, Washington 98052-7329.

10

12. Upon information and belief, Microsoft’s headquarters in the State of Washington

11 maintains control, oversight, and direction over the operation of its facilities, including its

12 employment practices.

13

13. During all relevant times, Microsoft was Plaintiffs’ employer within the meaning

14 of all applicable statutes.

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14. At all times pertinent hereto, Microsoft has employed more than five hundred

16 people.

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JURISDICTION AND VENUE

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15. This Court has original subject matter jurisdiction over Title VII claims pursuant

19 to 28 U.S.C. § 1331 and 1343 and 42 U.S.C. § 2000e-5(f)(3), because they arise under the laws of

20 the United States and are brought to recover damages for deprivation of equal rights.

21

16. This Court has jurisdiction over the Washington Law Against Discrimination

22 claims under the Class Action Fairness Act, 28 U.S.C. § 1332(d), because this is a class action in

23 which: (a) there are 100 or more members in the proposed class; (b) at least some members of the

24 proposed class have a different citizenship from Defendant; and (c) the claims of the proposed

25 class members exceed $5,000,000 in the aggregate.

26

17. In addition, this Court has supplemental jurisdiction over the Washington Law

27 Against Discrimination claims because they arise from a common nucleus of operative facts with

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1 the federal claims and are so related to the federal claims as to form part of the same case or

2 controversy under Article III of the United States Constitution.

3

18. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)-(c) and 42

4 U.S.C. § 2000e-5(f)(3), because Microsoft maintains offices in this district, conducts business in

5 this district, and a substantial part of the events and omissions giving rise to the claims alleged

6 herein occurred in this district, and because the alleged unlawful employment practices were

7 committed here, and employment records relevant to those practices are maintained and

8 administered here.

9

19. The Western District of Washington has personal jurisdiction over Microsoft

10 because it maintains offices in this District, does business in Washington and in this district, and

11 because many of the acts complained of and giving rise to the claims alleged herein occurred in

12 Washington and in this District.

13

20. Plaintiffs have exhausted their administrative remedies and complied with all

14 statutory prerequisites to their Title VII claims. Plaintiff Katherine Moussouris filed a charge of

15 gender discrimination and retaliation individually and on behalf of all similarly situated female

16 technical employees employed by Microsoft with the Equal Employment Opportunity

17 Commission (“EEOC”) on May 14, 2014. The EEOC charge is attached as Exhibit A (and

18 incorporated herein). By notice dated June 29, 2015, the EEOC issued a Notice of Right to Sue.

19 The original complaint in this action was filed within ninety days of the Notice of Right to Sue.

20 Where applicable, under the Ninth Circuit’s application of the single-filing rule, Muenchow is not

21 required to have filed a separate charge of gender discrimination and retaliation with the EEOC,

22 but instead may piggy-back off the previous filing of Moussouris, because Moussouris’s EEOC

23 charge relates to the same claims that Muenchow asserts.

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21. Where applicable, under the Ninth Circuit’s application of the single-filing rule,

25 Piermarini is not required to have filed a separate charge of gender discrimination and retaliation

26 with the EEOC, but instead may piggy-back off the previous filing of Moussouris, because

27 Moussouris’s EEOC charge relates to the same claims that Piermarini asserts.

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1

FACTUAL ALLEGATIONS

2

22. Microsoft maintains uniform employment, compensation, performance review,

3 and promotion policies throughout the United States. Microsoft also cultivates and promotes a

4 common corporate culture. These policies and this culture originate in Microsoft’s headquarters

5 in the State of Washington, and are disseminated to its offices in the rest of the country.

6

23. Microsoft’s offices throughout the U.S. use a common organizational structure,

7 organizing technical employees by levels.

8

24. In positions that Microsoft categorizes as “Tech” in nature, only 16.9% of

9 employees are female, while 83% are male.1

10

25. Microsoft discriminates against female technical employees in (1) performance

11 evaluations; (2) compensation; and (3) promotions. 12 Performance Evaluations

13

26. Microsoft uses uniform, unvalidated, and unreliable procedures for evaluating

14 employee performance that systematically undervalue female technical employees relative to

15 their similarly situated male peers. This has been true throughout the class period, although

16 Microsoft changed some aspects of its performance review system in 2013.

17

2011-2013 – “Stack Ranking”

18

27. For many years and continuing through 2013, Microsoft used a companywide

19 “stack ranking” system for evaluating employee performance, which force ranked employees

20 from best to worst using a performance rating from 1 through 5, with 1 being best, and 5 being

21 worst. Only a certain percentage of employees in a defined peer group could be assigned a

22 certain rank – for example, 20% of employees could receive a 1, 20% a 2, 45% a 3, 10% a 4, and

23 the remaining 5% received a 5.

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28. This process is an invalid performance measurement system, as it sets arbitrary

25 cutoffs among performers with similar performance. The stack ranking process forces a

26 1 See Our Workforce 2015: Tech, Microsoft Corporation, available at 27 https://www.microsoft.com/en-us/diversity/inside-microsoft/default.aspx#epgDivFocusArea (last
visited April 5, 2016); see also Request for Judicial Notice Ex. A, Dkt. 30-1. 28

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1 distribution of performance ratings outcomes (from 1 through 5) regardless of whether there are

2 meaningful performance differences between individual employees within a particular peer

3 group.

4

29. Worse still, an employee’s rank was not based on valid and reliable performance

5 measures. Microsoft instructed managers to evaluate employees based on three criteria: 1) “the

6 What,” which assessed their results against their “commitments”; 2) “the How,” which assessed

7 how the results were accomplished as demonstrated through “competencies”; and 3) “Proven

8 Capability,” which assessed whether the employees had a demonstrated history of taking on more

9 challenging work while continuing to deliver results. Microsoft did not instruct managers to

10 assign the three inputs any particular weight in undertaking this process. Microsoft also did not

11 ensure that managers were trained to assess these inputs in uniform and consistent ways to ensure

12 reliability. In fact, managers’ assignment of employees’ ranking relative to their peers was

13 untethered from any kind of valid performance metric that could be reliably compared from one

14 employee to another. The “How,” for example, involves the questions, “Did the employee

15 effectively collaborate, exhibit judgment, and demonstrate adaptability?” and “What was the

16 impact the employee had on others’ results through how the employee worked?” Microsoft

17 describes the “Proven Capability” metric as “a demonstrated history of taking on more

18 challenging work while continuing to deliver results,” which is similarly unreliable and

19 susceptible to inconsistent and biased measurement. Managers were instructed to use the three

20 unreliable qualitative assessments of employees’ performance (that is, “the What,” “the How,”

21 and “Proven Capability”) in assigning the employees in their review group a recommended

22 ranking from best to worst (1 through 5).

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30. To gather information on employees in these three areas, Microsoft gave

24 employees the opportunity to nominate certain individuals to provide input on their performance.

25 Microsoft managers, however, had the ability to add or remove reviewers at their election.

26 Accordingly, they were able to influence the performance evaluation process by controlling

27 which individuals would ultimately provide feedback on a particular employee.

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1

31. Technical employees were organized into peer groups to be rated against one

2 another in a so-called “calibration meeting.” These meetings were attended by managers

3 (“Calibration Managers”), who presented the merits of their own employees and attempted to

4 discredit the merits of the other Calibration Managers’ employees. The Calibration Managers did

5 not follow a reliable standard for ensuring consistency of review and comparison across

6 performers. After a week of such meetings, the “Calibration Owner” (the manager of the

7 Calibration Managers, typically a Director or Partner) would finally resolve the order of the stack

8 for all employees discussed in a given meeting. Because of the lack of reliable metrics, an

9 employee could end up on the bottom of the stack, regardless of her actual performance record

10 and regardless of the rank her Manager originally recommended.

11

32. After conclusion of the calibration meetings, the results were rolled up as “ratings

12 recommendations” to be reviewed and approved by the leadership of each organization within

13 Microsoft, typically by a high-level manager, such as a Corporate Vice President and/or

14 Executive Vice President. During this third-tier review, employees’ rankings could shift if the

15 higher-level manager determined that the distribution needed to be adjusted.

16

33. This forced ranking process took place twice each year, with the mid-year stack

17 ranking used as a mechanism to determine mid-year promotions, and the end of year stack

18 ranking used for compensation and year-end promotion decisions.

19

34. In this system, female technical employees were systematically undervalued

20 compared to their male peers because as a group they received, on average, lower rankings

21 despite equal or better performance. Upon information and belief, female employees were most 22 adversely impacted by the calibration meetings, where the vast majority (over 80%)2 of attending

23 managers were men. The proportion of men in management roles only increases at higher levels

24 of the organization, including with each successive review of the ratings recommendations.

25

26 2 See Our Workforce 2015: Leadership, Microsoft Corporation, available at
27 https://www.microsoft.com/en-us/diversity/inside-microsoft/default.aspx (last visited April 5, 2016).
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1

35. Predictably, performance management systems that include unreliable and invalid

2 criteria create inaccurate and biased outcomes. Social science research describes the reasons why

3 such inaccurate performance measurements systematically disadvantage women, particularly

4 where women work in male-dominated roles and where evaluators are men, as is frequently the 5 case at Microsoft.3

6

36. Upon information and belief, Microsoft’s stack ranking system has had an adverse

7 impact upon female employees.

8

2014-Present – “Connect” (or, stack ranking by a different name)

9

37. In 2014, Microsoft implemented a similar stack ranking system called Connect to

10 manage employee performance evaluation. This system is still in place today.

11

38. The Connect system is a similarly unvalidated and unreliable discriminatory

12 performance evaluation procedure that systematically undervalues female technical employees

13 relative to their male peers, and results in lower scores than men in similar positions despite equal

14 or better performance.

15

39. Within Connect, managers rate their direct reports based upon the employees’

16 “impact.” Impact includes three factors: “key individual accomplishments that contribute to

17 team, business, or customer impact”; “your contributions to the success of others”; and “your

18 results that build on the work, ideas, or efforts of others.” The Connect tool contains a horizontal

19 bar with a marker that can slide from left (low impact) to right (high impact). Managers place the

20 marker somewhere on the scale for each employee, and can also enter a brief justification for the

21 impact assessment (1,000 characters or less). Managers are not trained to calibrate their ratings to

22 a common understanding of performance across reviewers.

23

24 3 See, e.g., Alice H. Eagly, Mona G. Makhijani and Bruce G. Klonsky, Gender and the
Evaluation of Leaders: A Meta-analysis, 111 (1) Psychological Bulletin 3, 3-22 (Jan. 1992) 25 (observing that devaluation of women’s performance is greater when women leaders “occupied
26 male-dominated roles and when the evaluators were men”); Karen S. Lyness and Madeline E. Heilman, When Fit is Fundamental: Performance Evaluation and Promotions of Upper-level
27 Female and Male Managers, 91 (4) Journal of Applied Psychology 777, 777-85 (2006) (“[N]egative expectations resulting from perceptions of lack of fit detrimentally affect how
28 women are regarded and how their work is evaluated when they are in traditionally male jobs.”).

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40. Next, managers attend “People Discussions” with the other managers in their

2 organization, and the managers’ leader. Managers discuss impact recommendations and who

3 deserves the highest scores. The impact recommendations are then rolled-up to the leader, who

4 can adjust where employees fall on the impact spectrum based on the leader’s perceptions of

5 impact. Those results are then rolled up through the management chain, with each subsequent

6 level of manager adjusting results, until the organization’s leader makes a final determination.

7

41. While different in form, this system functions much like stack ranking in

8 substance, forcing a distribution of performance scores, with a similarly adverse impact on female

9 technical employees, for the same reasons. 10 Compensation

11

42. Microsoft employs uniform, unvalidated, and unreliable procedures for

12 determining employees’ compensation that disparately impact female professionals.

13

43. Microsoft determines employees’ compensation primarily by their performance

14 review results. Because female technical employees systematically receive worse results, they

15 also earn less than their male peers.

16

44. Under both the stack ranking and Connect performance review processes,

17 compensation has been determined by performance rating and job level (e.g., 59, 60, 61, etc.).

18 Class members’ compensation has included three components: salary, bonus, and stock awards.

19 After each year-end review, class members are eligible for a merit increase to base salary, a

20 “performance review bonus,” and “performance review stock awards.” Whether, and how much,

21 an employee receives in any of these categories is determined by her performance rating and her

22 job level.

23

45. For example, during the stack ranking era, employees ranked as 5’s received no

24 merit increase, no bonus, and no stock awards. Employees ranked as 4’s were eligible for a

25 bonus of between 5 to 15% of salary, depending on their level. Employees ranked as 3’s were

26 eligible for a bonus of 10 to 30% of salary, depending on their level, and so forth. The same type

27 of scale, defined by performance rank and job level, determined merit increases and stock awards.

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46. Under the Connect process, an employee’s placement on the “impact” scale

2 determines her merit increase, bonus, and stock awards. Based on the employee’s job level, the

3 placement on the scale automatically correlates with a pre-determined rewards outcome that is

4 designed to make all allocations fit within the organization’s overall targets. As an employee’s

5 impact placement changes with each level of management review, so does the employee’s

6 compensation outcome.

7

47. Because female technical employees have been systematically disadvantaged by

8 both the stack ranking and Connect processes, their compensation likewise has been adversely

9 impacted. 10 Promotions

11

48. Microsoft also employs common, unvalidated, unreliable, and discriminatory

12 procedures for selecting employees for promotion. Because promotions are tied to the

13 performance review process, female technical employees are adversely impacted in promotions as

14 well.

15

49. Microsoft does not apply legitimate or objective criteria for promotions of

16 technical employees. Promotions are not determined by objective, valid, and/or reliable

17 performance measures. Instead, employee promotions are tap-on-the-shoulder.

18

50. Under the stack ranking process, promotions were discussed at the end of the

19 calibration meeting process. Depending on where employees ended up in the overall rank, their

20 Calibration Managers could identify them as eligible for promotion (or not), while also arguing

21 for or against promotions for other managers’ reports. Promotion recommendations stemming

22 from calibration meetings were then rolled up to organizational leadership for final determination.

23

51. Under the Connect process, when managers place their reports on the impact

24 scale, they are also required to check either a “yes” or a “no” button for promotion. Managers

25 may submit a brief justification for the recommendation (1,000 character limit). The

26 recommendations are discussed during the “People Discussions,” and then submitted and rolled

27 up through the manager’s reporting chain for review, along with the overall impact rating. Each

28 subsequent management level reviews and adjusts promotions decisions along with

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1 impact/compensation outcomes. Ultimately, as with performance and compensation, final

2 promotion decisions are made by the organization leader.

3

52. Overall, Microsoft promotes an overwhelmingly disproportionate number of men,

4 and passes over equally or more qualified women.

5

CLASS ACTION ALLEGATIONS

6

53. Plaintiffs Moussouris, Muenchow, and Piermarini bring this class action pursuant

7 to Federal Rules of Civil Procedure 23(a), (b)(2), and (c)(4) seeking liability-phase injunctive and

8 declaratory relief on behalf of a nationwide Class of all female technical employees employed by

9 Microsoft in the United States at any time from July 18, 2013 through the resolution of this action

10 for claims under Title VII, and for the period from May 14, 2011 through resolution of this action

11 for claims under the Washington Law Against Discrimination. Plaintiff also brings this class

12 action pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3) seeking backpay, monetary

13 damages, and other make-whole relief on behalf of a nationwide Class of all female technical

14 employees employed by Microsoft in the United States at any time from July 18, 2013 through

15 the resolution of this action for claims under Title VII, and for the period from May 14, 2011

16 through resolution of this action for claims under the Washington Law Against Discrimination.

17 Excluded from the Class are retail store employees and employees in Microsoft’s Legal, Finance

18 and Human Resources departments. Plaintiffs reserve the right to amend the definition of the

19 Class based on discovery or legal developments.

20

54. Plaintiffs are members of the Class they seek to represent.

21

55. The members of the Class identified herein are so numerous that joinder of all

22 members is impracticable. Microsoft had a headcount of approximately 118,000 full-time

23 employees in 2015. Although Plaintiffs do not know the precise number of female technical

24 employees at Microsoft, nationwide or in Washington, the number is far greater than can be

25 feasibly addressed through joinder.

26

56. There are questions of law and fact common to the Class, and these questions

27 predominate over any questions affecting only individual members. Common questions include:

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a. whether Microsoft’s policies and practices discriminate against female

2 technical employees;

3

b. whether Microsoft’s policies and practices violate Title VII and/or the

4 Washington Law Against Discrimination;

5

c. whether Microsoft’s performance evaluation system discriminates against

6 female technical employees;

7

d. whether Microsoft’s compensation system discriminates against female

8 technical employees;

9

e. whether Microsoft’s promotion system discriminates against female

10 technical employees;

11

f. whether Microsoft has failed to implement policies and procedures to

12 prevent retaliation against employees who challenge gender discrimination in the workplace, has

13 failed to address complaints of gender discrimination in the workplace, and has failed to conduct

14 proper investigations of the same; and

15

g. whether equitable remedies, injunctive relief, compensatory damages, and

16 punitive damages for the Class are warranted.

17

57. Plaintiffs’ claims are typical of the claims of the Class they seek to represent.

18

58. Plaintiffs will fairly and adequately represent and protect the interests of the Class

19 they seek to represent.

20

59. Plaintiffs have retained counsel competent and experienced in complex class

21 actions and employment discrimination litigation.

22

60. Class certification is appropriate as to each Class pursuant to Federal Rule of Civil

23 Procedure 23(b)(2) because Microsoft has acted and/or refused to act on grounds generally

24 applicable to the Class, making appropriate declaratory and injunctive relief with respect to

25 Plaintiffs and the Class they seek to represent. The Class Members in each Class are entitled to

26 injunctive relief to end Microsoft’s common, uniform, unfair, and discriminatory policies and

27 practices.

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1

61. Class certification is also appropriate as to each Class pursuant to Federal Rule of

2 Civil Procedure 23(b)(3) because for each Class, common questions of fact and law predominate

3 over any questions affecting only individual members of that Class, and because for each Class, a

4 class action is superior to other available methods for the fair and efficient adjudication of this

5 litigation. The Class Members in each Class have been damaged and are entitled to recovery as a

6 result of Microsoft’s common, unfair, and discriminatory policies and practices. Microsoft has

7 computerized account data, payroll data, and personnel data that will make calculation of

8 damages for specific Class Members in each Class relatively simple. The propriety and amount of

9 punitive damages are based on Microsoft’s common conduct, making these issues common to

10 each Class.

11

CLAIMS OF NAMED PLAINTIFFS

12 Plaintiff Katherine Moussouris

13

62. Plaintiff Moussouris was hired by Microsoft in April of 2007 as a Security

14 Program Manager in the Trustworthy Computing Group. During her tenure at Microsoft, Ms.

15 Moussouris consistently achieved and usually exceeded her performance goals, and made

16 significant contributions to Microsoft’s business. Yet, as a result of Microsoft’s forced ranking

17 process, Ms. Moussouris received lower performance ratings than her male peers, despite having

18 better performance during the same performance period.

19

63. For example, in May 2012, Ms. Moussouris’s manager told her that she had

20 outstanding performance and had earned a rating of 2. However, after the forced ranking process,

21 she instead received a 3.

22

64. Similarly, in May 2013, Ms. Moussouris’s manager again commended her

23 performance and told her she deserved a 1. After the forced ranking process, Ms. Moussouris

24 received a 2.

25

65. Microsoft also paid Ms. Moussouris less than her male peers throughout her tenure

26 at the company.

27

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1

66. Microsoft also discriminated against Ms. Moussouris in its promotion process.

2 From 2010 to 2014, Microsoft passed her over for promotions in favor of less qualified and less

3 experienced men.

4

67. For example, in 2012, while Ms. Moussouris was on maternity leave, she was not

5 put forward for a promotion to Level 65, Principal Security Strategist, for which she was eligible

6 and eminently well qualified. In the year prior, Ms. Moussouris had been responsible for an

7 industry-leading initiative that resulted in the highest-rated news announcement for the Microsoft

8 Trustworthy Computing Group. However, Microsoft instead selected Ms. Moussouris’s male

9 colleague, who was less qualified, to be her manager. Ms. Moussouris’s managers from 2011

10 through 2013 told her that although the impact, quality, and scope of her work had been

11 “Principal-level” for years, certain managers did not like her manner or style, and so Microsoft

12 did not promote her. Ms. Moussouris was subject to an invalid and gender biased selection

13 process.

14

68. In 2013, Ms. Moussouris was again passed over for promotion to Level 65, despite

15 newsworthy new initiatives she created that are still referred to in the security industry. Instead,

16 Microsoft promoted two less qualified men in the Trustworthy Computing Group, who had not

17 performed the same scope of work as Ms. Moussouris, nor obtained the same level of recognition

18 and accomplishment in the security industry.

19

69. Ms. Moussouris also saw other female technical employees passed over for

20 promotion in favor of less-qualified men. For example, when the director of the Trustworthy

21 Computing Group left, two Principal-level women who had worked for him were not even

22 considered or given the chance to interview for the role. Instead, Microsoft hired a less-qualified

23 male from outside the company with little to no relevant work experience in managing the

24 specifics of large scale security response in a company with the size and scope of Microsoft.

25

70. In 2008, Ms. Moussouris complained about the Director of the Trustworthy

26 Computing Group, who was sexually harassing other women in the Group. Microsoft

27 investigated and concluded that he had in fact been sexually harassing female employees. Yet

28 Microsoft’s response was to re-assign this male Director to another part of the Trustworthy

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1 Computing Group, while retaining his title and influence. Before he was transferred, however, he

2 retaliated against Ms. Moussouris by assigning her a low bonus. Ms. Moussouris complained

3 about retaliation, but Microsoft took no action. Since that time, the same Director has been

4 promoted to Senior Director.

5

71. Starting in 2013, Ms. Moussouris’s manager systematically undermined Ms.

6 Moussouris by reducing the scope of her role, even though her high performance never changed.

7 For example, he took away several of Ms. Moussouris’s responsibilities and re-assigned them to a

8 less-qualified and less-experienced man, two levels below Ms. Moussouris. He also began to

9 assign Ms. Moussouris low-level tasks that he never asked men at Ms. Moussouris’s level to do.

10 Ms. Moussouris complained about this unfair treatment, but Microsoft took no action.

11

72. Due to the nature and extent of the unfair treatment Ms. Moussouris received, and

12 Microsoft’s continued refusal to take any corrective action to address it, Plaintiff was forced to

13 resign on May 30, 2014. 14 Plaintiff Holly Muenchow

15

73. Plaintiff Muenchow was hired by Microsoft in September of 2002 as a Software

16 Test Engineer (STE), and was then promoted to I/T Operations [“I/T OPS”] Program Manager in

17 approximately 2007. In 2012, Ms. Muenchow became a Senior I/T OPS Program Manager, an

18 engineering role where she coordinates product releases to Microsoft clients.

19

74. During the Class period, Ms. Muenchow has been subjected to Microsoft’s

20 company performance review process, receiving reviews that have not fully recognized her

21 contributions and which have negatively affected her compensation.

22

75. In addition, despite her long tenure with Microsoft, Ms. Muenchow has progressed

23 only from a Level 58 to a Level 63. By contrast, male colleagues have been promoted to higher

24 levels for which she was qualified and not considered. Ms. Muenchow has observed that women

25 progress more slowly at the company.

26

76. As a result of Microsoft’s compensation and promotion process, Ms. Muenchow

27 has been paid less than comparable male coworkers in the same position.

28

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Case 2:15-cv-01483-JLR Document 55 Filed 04/06/16 Page 16 of 26

1

77. Ms. Muenchow believes that Microsoft also disfavors women who take maternity

2 or medical leave, even if it has no impact on their ability to do their job when they are not on

3 leave, thus preventing them from earning top review scores, compensation, or promotions. 4 Plaintiff Dana Piermarini

5

78. Plaintiff Piermarini was hired by Microsoft in September of 2006 as a Solutions

6 Specialist in the Sales Division. Ms. Piermarini has a bachelor’s degree in Information Systems

7 with a minor in Computer Science. In her role as a Solutions Specialist, Ms. Piermarini educates

8 customers on technical aspects of Microsoft products.

9

79. During her tenure at Microsoft, Ms. Piermarini has consistently achieved and

10 usually exceeded her performance goals, and made significant contributions to Microsoft’s

11 business.

12

80. Despite her strong work performance, Ms. Piermarini has progressed only from a

13 Level 62 to a Level 64 over the course of 9 years. By contrast, male colleagues in comparable

14 positions have been promoted at faster rates.

15

81. For example, after returning from maternity leave in 2010 Microsoft denied Ms.

16 Piermarini a promotion from a Level 63 to a Level 64 despite her performance record.

17 Conversely, a male member of her team who was not a top performer received a mid-year 2010

18 promotion.

19

82. Microsoft eventually promoted Ms. Piermarini to a Level 64 in September 2011,

20 where she has stagnated to the present.

21

83. Microsoft has and continues to pass her over for promotions in favor of less

22 qualified and less experienced men.

23

84. As a result of Microsoft’s compensation and promotion process, Ms. Piermarini

24 has been paid less than comparable male coworkers in the same position.

25

85. Ms. Piermarini has observed that women progress more slowly and are treated less

26 favorably at Microsoft.

27

86. In or around November 2014, Ms. Piermarini asked her manager where she stood

28 in terms of the next level promotion. He told her that she needed to take on a “big project.”

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SECOND AMENDED CLASS ACTION COMPLAINT

Case 2:15-cv-01483-JLR Document 55 Filed 04/06/16 Page 17 of 26

1 Although this criterion had not been communicated to her previously, nor had it been applied to

2 men who had been promoted in the past, Ms. Piermarini put together a proposal for her manager

3 on her role as lead of a large project. Although her manager initially expressed support for the

4 role, he refused to provide her any feedback on her proposal. Several months later, Ms.

5 Piermarini learned through a group email that her manager had assigned the lead role on the

6 project to a male member of the team who was a Level 64 at the time and who has since been

7 promoted to a Level 65.

8

87. Ms. Piermarini complained to Microsoft Human Resources that she believed her

9 manager was treating her less favorably because of her gender both in terms of work

10 opportunities and by making demeaning and sexist comments. For example, he dismissed the

11 fact that she had raised concerns with him about his poor treatment of her as compared to others

12 by claiming she had become emotional during the meeting. He also singled her out for her child-

13 care responsibilities although they had no impact on her performance, and male members of her

14 team were in comparable situations.

15

88. Microsoft Human Resources concluded their investigation into Ms. Piermarini’s

16 complaints finding that her male manager had done nothing wrong. This same man remains Ms.

17 Piermarini’s manager. Upon information and belief, after Ms. Piermarini complained to Human

18 Resources, her manager retaliated by soliciting negative and demonstrably false comments about

19 Ms. Piermarini for her 2015 end of the year performance evaluation. Ms. Piermarini also did not

20 receive a promotion in 2015 and, upon information and belief, was paid a smaller bonus amount

21 in comparison to men performing at or below her level.

22

CAUSES OF ACTION

23

FIRST CLAIM FOR RELIEF

24

Intentional Discrimination

(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended by the Lilly

25

Ledbetter Fair Pay Act of 2009)

(On Behalf of Plaintiffs and the Class) 26

27

89. Plaintiffs incorporate the preceding paragraphs as alleged above.

28

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SECOND AMENDED CLASS ACTION COMPLAINT

Case 2:15-cv-01483-JLR Document 55 Filed 04/06/16 Page 18 of 26

1

90. This claim is brought by Plaintiffs on behalf of themselves and the Class they seek

2 to represent. Plaintiff Moussouris has filed a timely charge with the EEOC on behalf of herself

3 and the Class Members. Plaintiffs Muenchow and Piermarini may piggy-back off the previous

4 filing of Moussouris, because Moussouris’s EEOC charge relates to the same claims that

5 Muenchow and Piermarini assert.

6

91. Microsoft has engaged in an intentional, company-wide, and systematic

7 policy, pattern, and/or practice of discrimination against its female technical employees.

8 Microsoft has intentionally discriminated against Plaintiffs and the Class in violation of Title VII

9 by, among other things:

10

a. Utilizing a biased performance rating system;

11

b. Utilizing a biased compensation system;

12

c. Utilizing a biased promotion system; and

13

d. Failing to take reasonable and adequate steps to prevent and correct the use

14 of standardless, unvalidated, and/or illegitimate criteria to determine the terms and conditions of

15 employment.

16

92. These company-wide policies are intended to and do have the effect of:

17

a. Denying Plaintiffs and Class Members business opportunities because of

18 their gender;

19

b. Compensating them less because of their gender;

20

c. Failing to promote them because of their gender;

21

d. Evaluating their performance more negatively because of their gender; and

22

e. Providing them with inferior terms and conditions of employment as a

23 result of discriminatory performance measures that systematically disadvantaged them because of

24 their gender.

25

93. The discriminatory acts that constitute Microsoft’s pattern and/or practice of

26 discrimination have occurred both within and outside the liability period in this case.

27

28

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SECOND AMENDED CLASS ACTION COMPLAINT

Case 2:15-cv-01483-JLR Document 55 Filed 04/06/16 Page 19 of 26

1

94. As a direct result of Microsoft’s discriminatory policies and/or practices as

2 described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost

3 past and future income, compensation, and benefits.

4

95. The foregoing conduct constitutes illegal, intentional discrimination and

5 unjustified disparate treatment prohibited by 42 U.S.C. §§ 2000e et seq.

6

96. Plaintiffs request relief as hereinafter described.

7

SECOND CLAIM FOR RELIEF

8

Disparate Impact Discrimination

(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended by the Lilly

9

Ledbetter Fair Pay Act of 2009)

(On Behalf of Plaintiffs and the Class) 10

11

97. Plaintiffs incorporate the preceding paragraphs as alleged above.

12

98. This claim is brought by Plaintiffs on behalf of themselves and the Class they seek

13 to represent. Plaintiff Moussouris has filed a timely charge with the EEOC on behalf of herself

14 and the Class Members. Plaintiffs Muenchow and Piermarini may piggy-back off the previous

15 filing of Moussouris, because Moussouris’s EEOC charge relates to the same claims that

16 Muenchow and Piermarini assert.

17

99. Microsoft’s reliance on illegitimate and unvalidated systems and criteria to

18 evaluate employee performance, set compensation, select individuals for promotion, and

19 determine other terms and conditions of employment, have an adverse impact on female technical

20 employees in violation of Title VII and are not, and cannot be, justified by business necessity.

21 Even if such system and/or policies could be justified by business necessity, less discriminatory

22 alternatives exist and would equally serve any alleged necessity.

23

100. Microsoft has maintained these discriminatory policies, patterns, and/or practices

24 both within and outside the liability period in this case.

25

101. As a direct result of Microsoft’s discriminatory policies and/or practices as

26 described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost

27 past and future income, compensation, and benefits.

28

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SECOND AMENDED CLASS ACTION COMPLAINT

Case 2:15-cv-01483-JLR Document 55 Filed 04/06/16 Page 20 of 26

1

102. The foregoing policies, patterns, and/or practices have an unlawful disparate

2 impact on women in violation of 42 U.S.C. §§ 2000e et seq.

3

103. Plaintiffs request relief as hereinafter described.

4

THIRD CLAIM FOR RELIEF

5

Intentional Discrimination

(Washington Law Against Discrimination, Rev. Code Wash. § 49.60.010. et seq.)

6

(On Behalf of Plaintiffs and the Class)

7

104. Plaintiffs incorporate the preceding paragraphs as alleged above.

8

105. This claim is brought by Plaintiffs on behalf of themselves and the Class they seek

9 to represent.

10

106. Microsoft has engaged in an intentional, company-wide, and systematic

11 policy, pattern, and/or practice of discrimination against its female technical employees.

12 Microsoft has intentionally discriminated against Plaintiffs and the Class in violation of the

13 Washington Law Against Discrimination by, among other things:

14

a. Utilizing a biased performance rating system;

15

b. Utilizing a biased compensation system;

16

c. Utilizing a biased promotion system; and

17

d. Failing to take reasonable and adequate steps to prevent and correct the use

18 of standardless, unvalidated, and/or illegitimate criteria to determine the terms and conditions of

19 employment.

20

107. These company-wide policies are intended to and do have the effect of:

21

a. Denying Plaintiffs and Class Members business opportunities because of

22 their gender;

23

b. Compensating them less because of their gender;

24

c. Failing to promote them because of their gender;

25

d. Evaluating their performance more negatively because of their gender; and

26

e. Providing them with inferior terms and conditions of employment as a

27 result of discriminatory performance measures that systematically disadvantaged them because of

28 their gender.

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SECOND AMENDED CLASS ACTION COMPLAINT

Case 2:15-cv-01483-JLR Document 55 Filed 04/06/16 Page 21 of 26

1

108. The discriminatory acts that constitute Microsoft’s pattern and/or practice of

2 discrimination have been based in and emanated from within the State of Washington, and have

3 occurred both within and outside the liability period in this case. The discriminatory policies,

4 patterns, and practices have had a discriminatory impact on the female employees of Microsoft

5 nationwide.

6

109. As a direct result of Microsoft’s discriminatory policies and/or practices as

7 described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost

8 past and future income, compensation, and benefits.

9

110. The foregoing conduct constitutes illegal, intentional discrimination and

10 unjustified disparate treatment prohibited by the Washington Law Against Discrimination, Rev.

11 Code Wash. § 49.60.010. et seq.

12

111. Plaintiffs request relief as hereinafter described.

13

FOURTH CLAIM FOR RELIEF

14

Disparate Impact Discrimination

(Washington Law Against Discrimination, Rev. Code Wash. § 49.60.010. et seq.)

15

(On Behalf of Plaintiffs and the Class)

16

112. Plaintiffs incorporate the preceding paragraphs as alleged above.

17

113. This claim is brought by Plaintiffs on behalf of themselves and the Class they seek

18 to represent.

19

114. Microsoft’s reliance on illegitimate and unvalidated systems and criteria to

20 evaluate employee performance, set compensation, and select individuals for promotion, and

21 determine other terms and conditions of employment, have an adverse impact on female technical

22 employees in violation of the Washington Law Against Discrimination and are not, and cannot

23 be, justified by business necessity. Even if such systems and/or policies could be justified by

24 business necessity, less discriminatory alternatives exist and would equally serve any alleged

25 necessity.

26

115. Microsoft has maintained these discriminatory policies, patterns, and/or practices

27 arising in and/or emanating from within the State of Washington, both within and outside the

28

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SECOND AMENDED CLASS ACTION COMPLAINT

Case 2:15-cv-01483-JLR Document 55 Filed 04/06/16 Page 22 of 26

1 liability period in this case. The discriminatory policies, patterns, and practices have had a

2 discriminatory impact on the female employees of Microsoft nationwide.

3

116. As a direct result of Microsoft’s discriminatory policies and/or practices as

4 described above, Plaintiffs and the Class have suffered damages including, but not limited to, lost

5 past and future income, compensation, and benefits.

6

117. The foregoing policies, patterns, and/or practices have an unlawful disparate

7 impact on women in violation of the Washington Law Against Discrimination, Rev. Code Wash.

8 § 49.60.010. et seq.

9

118. Plaintiffs request relief as hereinafter described.

10

FIFTH CLAIM FOR RELIEF

11

Retaliation

(Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.)

12

(On Behalf of Plaintiffs Moussouris and Piermarini Individually)

13

119. Plaintiffs Moussouris and Piermarini incorporate the preceding paragraphs as

14 alleged above.

15

120. This claim is brought by Plaintiffs Moussouris and Piermarini individually.

16 Plaintiff Moussouris has timely filed a charge with the EEOC alleging individual and class

17 retaliation claims and has thus exhausted her administrative remedies. Plaintiff Piermarini may

18 piggy-back off the previous filing of Moussouris, because Moussouris’s EEOC charge relates to

19 the same claims that Piermarini asserts.

20

121. Plaintiffs Moussouris and Piermarini engaged in protected activities, including

21 making internal complaints of unlawful discrimination and filing charges with the EEOC

22 complaining of Microsoft’s discriminatory policies and practices.

23

122. Microsoft took adverse actions against Plaintiffs Moussouris and Piermarini with

24 the purpose of retaliating against them because of their participation in protected activities, and

25 Plaintiffs Moussouris and Piermarini suffered damages as a result of that conduct.

26

123. Plaintiffs Moussouris and Piermarini request relief as hereinafter described.

27

28

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SECOND AMENDED CLASS ACTION COMPLAINT

Case 2:15-cv-01483-JLR Document 55 Filed 04/06/16 Page 23 of 26

1

SIXTH CLAIM FOR RELIEF

2

Retaliation

(Washington Law Against Discrimination, Rev. Code Wash. § 49.60.010. et seq.

3

(On Behalf of Plaintiff Moussouris Individually)

4

124. Plaintiff Moussouris incorporates the preceding paragraphs as alleged above.

5

125. This claim is brought by Plaintiff Moussouris individually.

6

126. Plaintiff Moussouris engaged in protected activities, including making internal

7 complaints of unlawful discrimination and filing charges with the EEOC complaining of

8 Microsoft’s discriminatory policies and practices.

9

127. Microsoft took adverse actions against Plaintiff Moussouris with the purpose of

10 retaliating against her because of her participation in protected activities during the liability

11 period in the State of Washington, and Plaintiff Moussouris suffered damages in the State of

12 Washington as a result of that conduct.

13

128. Plaintiff Moussouris requests relief as hereinafter described.

14

PRAYER FOR RELIEF

15

129. WHEREFORE, Plaintiffs and the Class pray for relief as follows:

16

a. Certification of the case as a class action on behalf of the proposed Class;

17

b. Designation of Representative Plaintiffs Moussouris, Muenchow, and

18 Piermarini as representatives of the Class;

19

c. Designation of Representative Plaintiffs’ counsel of record as Class

20 Counsel for the Class;

21

d. A declaratory judgment that the practices complained of herein are

22 unlawful and violate 42 U.S.C. §§ 2000e, et seq.; and the Washington Law Against

23 Discrimination, Rev. Code Wash. § 49.60.010. et seq.;

24

e. A preliminary and permanent injunction against Microsoft and its officers,

25 agents, successors, employees, representatives, and any and all persons acting in concert with

26 them, from engaging in policies, patterns, and/or practices that discriminate against Plaintiffs or

27 the Class because of their gender or participation in this lawsuit;

28

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SECOND AMENDED CLASS ACTION COMPLAINT

Case 2:15-cv-01483-JLR Document 55 Filed 04/06/16 Page 24 of 26

1

f. An order that Microsoft institute and carry out policies, practices, and

2 programs that provide equal employment opportunities for all employees regardless of gender,

3 and that it eradicate the effects of their past and present unlawful employment practices;

4

g. An order requiring Microsoft to develop and institute accurate and

5 validated standards for evaluating performance, determining pay, and making promotion

6 decisions;

7

h. An order appointing a monitor to ensure that Microsoft complies with the

8 injunction provisions of any decree that the Court orders;

9

i. An order retaining jurisdiction over this action to ensure that Microsoft

10 complies with such a decree;

11

j. An order restoring Plaintiff Moussouris and Class Members to their

12 rightful positions at Microsoft (i.e., reinstatement), or in lieu of reinstatements, an order for front

13 pay benefits;

14

k. Back pay (including interest and benefits) for the Representative Plaintiffs

15 and Class Members;

16

l. All damages sustained as a result of Microsoft’s conduct, including

17 damages for emotional distress, humiliation, embarrassment, and anguish, according to proof;

18

m. Exemplary and punitive damages in an amount commensurate with

19 Microsoft’s ability to pay and to deter future conduct;

20

n. Costs incurred herein, including reasonable attorneys’ fees to the extent

21 allowable by law;

22

o. Pre-judgment and post-judgment interest, as provided by law; and

23

p. Such other and further legal and equitable relief as this Court deems

24 necessary, just, and proper.

25

JURY DEMAND

26

130. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand

27 a trial by jury in this action.

28

- 24 -

SECOND AMENDED CLASS ACTION COMPLAINT

Case 2:15-cv-01483-JLR Document 55 Filed 04/06/16 Page 25 of 26

1 2 Dated: April 6, 2016 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
By: ____________________________
Sharon M. Lee (Wash. Bar No. 37170) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 2101 Fourth Avenue, Suite 1900 Seattle, Washington 98121 Telephone: (206) 739-9059 Facsimile: (415) 956-1008 E-Mail: slee@lchb.com

- 25 -

SECOND AMENDED CLASS ACTION COMPLAINT

Case 2:15-cv-01483-JLR Document 55 Filed 04/06/16 Page 26 of 26

1

Kelly M. Dermody (pro hac vice)

Anne B. Shaver (pro hac vice)

2

Michael Levin-Gesundheit (pro hac vice)

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP

3

275 Battery Street, 29th Floor

San Francisco, CA 94111-3339

4

Telephone: (415) 956-1000

Facsimile: (415) 956-1008

5

E-Mail: kdermody@lchb.com

E-Mail: ashaver@lchb.com

6

E-Mail: mlevin@lchb.com

7

Adam T. Klein (pro hac vice)

Cara E. Greene (pro hac vice)

8

Ossai Miazad (pro hac vice)

OUTTEN & GOLDEN LLP

9

3 Park Avenue, 29th Floor

New York, New York 10016

10

Telephone: (212) 245-1000

Facsimile: (212) 977-4005

11

E-Mail: ATK@outtengolden.com

E-Mail: CEG@outtengolden.com

12

E-Mail: OM@outtengolden.com

13

Jahan C. Sagafi (pro hac vice)

Katrina L. Eiland (pro hac vice)

14

OUTTEN & GOLDEN LLP

One Embarcadero Center, 38th Floor

15

San Francisco, California 94111

Telephone: (415) 638-8800

16

Facsimile: (415) 638-8810

E-Mail: jsagafi@outtengolden.com

17

E-Mail: keiland@outtengolden.com

18

Michael Subit (Wash. Bar No. 29189)

FRANK FREED SUBIT & THOMAS LLP

19

705 Second Avenue, Suite 1200

Seattle, Washington 98104

20

Telephone: (206) 682-6711

Facsimile: (206) 682-0401

21

E-Mail: msubit@frankfreed.com

22 Attorneys for Plaintiffs and the proposed Class
23

24

25

26

27

28

- 26 -

SECOND AMENDED CLASS ACTION COMPLAINT

Case 2:15-cv-01483-JLR Document 55-1 Filed 04/06/16 Page 1 of 7
EXHIBIT A

Case 2:15-cv-01483-JLR Document 55-1 Filed 04/06/16 Page 2 of 7

Case 2:15-cv-01483-JLR Document 55-1 Filed 04/06/16 Page 3 of 7

Case 2:15-cv-01483-JLR Document 55-1 Filed 04/06/16 Page 4 of 7

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Case 2:15-cv-01483-JLR Document 55-1 Filed 04/06/16 Page 7 of 7

 
 U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:15-cv-01483-JLR

Moussouris v. Microsoft Corporation Assigned to: Judge James L. Robart Case in other court: 9th Circuit Court of Appeals, 18-
80080 Cause: 28:451 Employment Discrimination

Date Filed: 09/16/2015 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Special Master
Michelle Peterson TERMINATED: 02/28/2019

represented by Michelle Peterson MICHELLE PETERSON LAW PLLC 1420 FIFTH AVENUE SUITE 2200 SEATTLE, WA 98101 206-650-2213 Email: Michelle@michellepetersonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Katherine Moussouris on behalf of herself and a class of those similarly situated

represented by Adam T Klein OUTTEN & GOLDEN, LLP 685 THIRD AVENUE, 25TH FLOOR NEW YORK, NY 10017 212-245-1000 Fax: 646-509-2060 Email: ATK@outtengolden.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Anne B. Shaver LIEFF CABRASER HEIMANN & BERNSTEIN 275 BATTERY STREET 29TH FLOOR SAN FRANCISCO, CA 94111 415-956-1000 Email: ashaver@lchb.com

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cara B Chomski OUTTEN & GOLDEN LLP 685 THIRD AVENUE, 25TH FLOOR NEW YORK, NY 10017 212-245-1000 Fax: 646-509-2060 Email: cchomski@outtengolden.com TERMINATED: 03/02/2017 LEAD ATTORNEY PRO HAC VICE
Daniel Stromberg OUTTEN & GOLDEN LLP (NY) 685 THIRD AVENUE 25TH FLOOR NEW YORK, NY 10017 212-245-1000 Email: dstromberg@outtengolden.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth V Stork OUTTEN & GOLDEN LLP 685 THIRD AVENUE, 25TH FLOOR NEW YORK, NY 10017 212-245-1000 Fax: 646-509-2060 Email: estork@outtengolden.com TERMINATED: 02/16/2018 LEAD ATTORNEY PRO HAC VICE
Katrina L Eiland OUTTEN & GOLDEN, LLP ONE EMBARCADERO CENTER, 38TH FLOOR SAN FRANCISCO, CA 94111

415-638-8800 Email: keiland@outtengolden.com TERMINATED: 02/23/2017 LEAD ATTORNEY PRO HAC VICE
Kelly M Dermody LIEFF CABRASER HEIMANN & BERNSTEIN 275 BATTERY STREET 29TH FLOOR SAN FRANCISCO, CA 94111 415-956-1000 Fax: FAX 1-415-956-1008 Email: kdermody@lchb.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael C Danna OUTTEN & GOLDEN LLP 685 THIRD AVENUE 25TH FLOOR NEW YORK, NY 10017 212-245-1000 Email: mdanna@outtengolden.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Levin-Gesundheit LIEFF CABRASER HEIMANN & BERNSTEIN 275 BATTERY STREET 29TH FLOOR SAN FRANCISCO, CA 94111 415-956-1000 Email: mlevin@lchb.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Lamy LIEFF CABRASER HEIMANN & BERNSTEIN (SF) 275 BATTERY STREET

29TH FLOOR SAN FRANCISCO, CA 94111 415-956-1000 Email: mlamy@lchb.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ossai Miazad OUTTEN & GOLDEN LLP 685 THIRD AVENUE, 25TH FLOOR NEW YORK, NY 10017 212-245-1000 Fax: 646-509-2060 Email: OM@outtengolden.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Pamela Disney OUTTEN & GOLDEN LLP 601 MASSACHUSETTS AVENUE NW SECOND FLOOR,WEST SUITE WASHINGTON, DC 20001 202-847-4400 Email: pdisney@outtengolden.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul W Mollica OUTTEN & GOLDEN LLP 161 N. CLARK STREET STE 1600 CHICAGO, IL 60601 312-809-7010 Email: pwmollica@outtengolden.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Bien OUTTEN & GOLDEN LLP

685 THIRD AVENUE 25TH FLOOR NEW YORK, NY 10017 212-245-1000 Email: rmb@outtengolden.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel J Geman LIEFF CABRASER HEIMANN & BERNSTEIN (NY) 250 HUDSON ST 8TH FLOOR NEW YORK, NY 10013-1413 212-355-9500 Email: rgeman@lchb.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tiseme Zegeye LIEFF CABRASER HEIMANN & BERNSTEIN (SF) 275 BATTERY STREET 29TH FLOOR SAN FRANCISCO, CA 94111 415-956-1000 Email: tzegeye@lchb.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Yaman Salahi LIEFF CABRASER HEIMANN & BERNSTEIN (SF) 275 BATTERY STREET 29TH FLOOR SAN FRANCISCO, CA 94111 415-956-1000 Email: ysalahi@lchb.com TERMINATED: 06/01/2017 LEAD ATTORNEY PRO HAC VICE
Michael C Subit

Plaintiff Holly Muenchow

FRANK FREED SUBIT & THOMAS 705 2ND AVE STE 1200 SEATTLE, WA 98104-1729 206-682-6711 Fax: 206-682-0401 Email: msubit@frankfreed.com ATTORNEY TO BE NOTICED
Sharon M Lee LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP (WA) 2101 FOURTH AVENUE, STE 1900 SEATTLE, WA 98121-1843 206-739-9059 Email: slee@lchb.com ATTORNEY TO BE NOTICED
represented by Adam T Klein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anne B. Shaver (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Cara B Chomski (See above for address) TERMINATED: 03/02/2017 LEAD ATTORNEY PRO HAC VICE
Daniel Stromberg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth V Stork

(See above for address) TERMINATED: 02/16/2018 LEAD ATTORNEY PRO HAC VICE
Katrina L Eiland (See above for address) TERMINATED: 02/23/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly M Dermody (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael C Danna (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Lamy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Pamela Disney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul W Mollica (See above for address) LEAD ATTORNEY PRO HAC VICE

Plaintiff
Dana Piermarini TERMINATED: 02/26/2019

ATTORNEY TO BE NOTICED
Rachel Bien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel J Geman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tiseme Zegeye (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Yaman Salahi (See above for address) TERMINATED: 06/01/2017 LEAD ATTORNEY PRO HAC VICE
Michael C Subit (See above for address) ATTORNEY TO BE NOTICED
Sharon M Lee (See above for address) ATTORNEY TO BE NOTICED
represented by Adam T Klein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anne B. Shaver (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Cara B Chomski (See above for address) TERMINATED: 03/02/2017 LEAD ATTORNEY PRO HAC VICE
Daniel Stromberg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth V Stork (See above for address) TERMINATED: 02/16/2018 LEAD ATTORNEY PRO HAC VICE
Katrina L Eiland (See above for address) TERMINATED: 02/23/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly M Dermody (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael C Danna (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Lamy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ossai Miazad (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Pamela Disney (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul W Mollica (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel Bien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rachel J Geman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tiseme Zegeye (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Yaman Salahi (See above for address) TERMINATED: 06/01/2017 LEAD ATTORNEY PRO HAC VICE
Michael C Subit (See above for address) ATTORNEY TO BE NOTICED
Sharon M Lee

V. Defendant Microsoft Corporation

(See above for address) ATTORNEY TO BE NOTICED
represented by Allison Riechert Giese ORRICK HERRINGTON & SUTCLIFFE (MENLO PK) 1000 MARSH ROAD MENLO PARK, CA 94025-1014 650-614-7400 Email: agiese@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica R Perry ORRICK HERRINGTON & SUTCLIFFE (MENLO PK) 1000 MARSH ROAD MENLO PARK, CA 94025-1014 650-614-7400 Email: jperry@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jill L. Rosenberg ORRICK HERRINGTON & SUTCLIFFE (NY) 51 W. 52ND STREET NEW YORK, NY 10019 212-506-5000 Email: jrosenberg@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Liburt ORRICK HERRINGTON & SUTCLIFFE (MENLO PK) 1000 MARSH ROAD MENLO PARK, CA 94025-1014 650-614-7400

Email: jliburt@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Grzenczyk Mantoan ORRICK,HERRINGTON & SUTCLIFFE LLP 1120 NW COUCH STREET STE 200 PORTLAND, OR 97209 503-943-4870 Email: kmantoan@orrick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauri A Damrell ORRICK, HERRINGTON & SUTCLIFFE LLP 400 CAPITOL MALL, SUITE 3000 SACRAMENTO, CA 95814-4497 916-447-9200 Email: ldamrell@orrick.com TERMINATED: 01/10/2018 LEAD ATTORNEY PRO HAC VICE
Lynne C Hermle ORRICK HERRINGTON & SUTCLIFFE (MENLO PK) 1000 MARSH ROAD MENLO PARK, CA 94025-1014 650-614-7400 Email: lchermle@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Marc R Shapiro ORRICK HERRINGTON & SUTCLIFFE (NY) 51 W. 52ND STREET NEW YORK, NY 10019 212-506-5000 Email: mrshapiro@orrick.com LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Megan M. Lawson ORRICK HERRINGTON & SUTCLIFFE (MENLO PK) 1000 MARSH ROAD MENLO PARK, CA 94025-1014 650-614-7400 Email: megan.lawson@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy Butler Curtis ORRICK HERRINGTON & SUTCLIFFE (DC) COLUMBIA CENTER 1152 15TH STREET NW WASHINGTON, DC 20005 202-339-8400 Email: wcurtis@orrick.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Steven Parris ORRICK HERRINGTON & SUTCLIFFE LLP (SEA) 701 FIFTH AVENUE STE 5600 SEATTLE, WA 98104 206-839-4300 Fax: 206-839-4301 Email: mparris@orrick.com ATTORNEY TO BE NOTICED

Date Filed 09/16/2015

# Docket Text
1 COMPLAINT Class Action Complaint against defendant(s) Microsoft Corporation with JURY DEMAND (Receipt # 0981-4161088) Attorney Sharon M Lee added to party Katherine Moussouris(pty:pla), filed by Katherine Moussouris. (Attachments: # 1 Civil Cover Sheet)(Lee, Sharon) (Entered: 09/16/2015)

09/16/2015 09/17/2015 09/17/2015 09/17/2015
09/17/2015
09/17/2015 09/17/2015 10/27/2015 10/28/2015 10/30/2015

2 PRAECIPE TO ISSUE SUMMONS by Plaintiff Katherine Moussouris (Lee, Sharon) (Entered: 09/16/2015)
3 APPLICATION OF ATTORNEY Kelly M. Dermody FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff Katherine Moussouris (Fee Paid) Receipt No. 0981-4163135 (Lee, Sharon) (Entered: 09/17/2015)
4 APPLICATION OF ATTORNEY Anne B. Shaver FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff Katherine Moussouris (Fee Paid) Receipt No. 0981-4163156 (Lee, Sharon) (Entered: 09/17/2015)
5 ORDER re 3 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Kelly M Dermody for Katherine Moussouris, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/17/2015)
6 ORDER re 4 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Anne B. Shaver for Katherine Moussouris, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 09/17/2015)
Judge James L. Robart added. (ST) (Entered: 09/17/2015)
7 Summons electronically issued as to defendant(s) Microsoft Corporation. (ST) (Entered: 09/17/2015)
8 AMENDED COMPLAINT against defendant(s) Microsoft Corporation with JURY DEMAND, filed by Katherine Moussouris. (Attachments: # 1 Exhibit A)(Lee, Sharon) (Entered: 10/27/2015)
9 NOTICE of Appearance by attorney Mark Steven Parris on behalf of Defendant Microsoft Corporation. (Attachments: # 1 Certificate of Service)(Parris, Mark) (Entered: 10/28/2015)
10 APPLICATION OF ATTORNEY Adam T. Klein FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly

10/30/2015 10/30/2015 10/30/2015
10/30/2015
10/30/2015
11/05/2015

Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-4214113 (Lee, Sharon) (Entered: 10/30/2015)
11 APPLICATION OF ATTORNEY Ossai Miazad FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-4214122 (Lee, Sharon) (Entered: 10/30/2015)
12 APPLICATION OF ATTORNEY Katrina Eiland FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-4214130 (Lee, Sharon) (Entered: 10/30/2015)
13 ORDER re 10 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Adam T Klein for Katherine Moussouris, Holly Muenchow, and for Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 10/30/2015)
14 ORDER re 11 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Ossai Miazad for Katherine Moussouris, Holly Muenchow, and for Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 10/30/2015)
15 ORDER re 12 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Katrina L Eiland for Katherine Moussouris, Holly Muenchow, and for Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 10/30/2015)
16 STIPULATION AND PROPOSED ORDER by parties (Attachments: # 1 Certificate of Service)(Parris, Mark) (Entered: 11/05/2015)

11/06/2015 11/09/2015 11/09/2015 11/12/2015 11/12/2015 11/12/2015 11/12/2015
11/12/2015 11/13/2015

17 STIPULATION AND ORDER; dft's responsive pleading due 11/12/15; dft's motion to be noted for 12/18/15, opposition due 12/7/15, reply due 12/18/15 by Judge James L. Robart. (RS) (Entered: 11/06/2015)
18 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT Joint Status Report due by 1/8/2016, FRCP 26f Conference Deadline is 12/28/2015, Initial Disclosure Deadline is 1/8/2016, by Judge James L. Robart. (CC) (Entered: 11/09/2015)
19 SCHEDULING ORDER REGARDING CLASS CERTIFICATION MOTION. Deadline to complete discovery on class certification February 13, 2016. Deadline for Plaintiffs to file motion for class certification - March 16, 2016. by Judge James L. Robart. (CC) (Entered: 11/09/2015)
20 APPLICATION OF ATTORNEY Michael Levin-Gesundheit FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff Katherine Moussouris (Fee Paid) Receipt No. 0981-4228760 (Lee, Sharon) (Entered: 11/12/2015)
21 APPLICATION OF ATTORNEY Lynne C. Hermle FOR LEAVE TO APPEAR PRO HAC VICE for Defendant Microsoft Corporation (Fee Paid) Receipt No. 0981-4229211 (Attachments: # 1 Certificate of Service)(Parris, Mark) (Entered: 11/12/2015)
22 APPLICATION OF ATTORNEY Jessica R. Perry FOR LEAVE TO APPEAR PRO HAC VICE for Defendant Microsoft Corporation (Fee Paid) Receipt No. 0981-4229226 (Attachments: # 1 Certificate of Service)(Parris, Mark) (Entered: 11/12/2015)
23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , STRIKE AND/OR FOR MORE DEFINITE STATEMENT by Defendant Microsoft Corporation. Oral Argument Requested. (Attachments: # 1 Proposed Order Granting Microsoft's Motion to Dismiss, Strike and/or for More Definite Statement) Noting Date 12/18/2015, (Parris, Mark) (Entered: 11/12/2015)
24 CORPORATE DISCLOSURE STATEMENT Filed pursuant to Fed.R.Civ.P 7.1. Filed by Microsoft Corporation (Parris, Mark) (Entered: 11/12/2015)
25 ORDER re 20 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Michael Levin-Gesundheit for Katherine Moussouris, by Clerk William M McCool. No document associated with this docket entry, text only.

11/13/2015
11/13/2015
12/07/2015 12/18/2015 01/05/2016 01/06/2016

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/13/2015)
26 ORDER re 21 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Lynne C Hermie Lynne C. Hermle for Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) Modified on 1/27/2016 (DS). (Entered: 11/13/2015)
27 ORDER re 22 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Jessica R Perry for Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/13/2015)
28 RESPONSE, by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini, to 23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , STRIKE AND/OR FOR MORE DEFINITE STATEMENT. Oral Argument Requested. (Lee, Sharon) (Entered: 12/07/2015)
29 REPLY, filed by Defendant Microsoft Corporation, TO RESPONSE to 23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , STRIKE AND/OR FOR MORE DEFINITE STATEMENT (Parris, Mark) (Entered: 12/18/2015)
30 REQUEST by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini for Judicial Notice re 28 Response to Motion (Attachments: # 1 Exhibit A)(Lee, Sharon) (Entered: 01/05/2016)
31 NOTICE of Association of Attorney by Michael C Subit on behalf of Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Subit, Michael) (Entered: 01/06/2016)

01/08/2016 01/20/2016 01/21/2016 01/25/2016 01/25/2016 01/25/2016 01/25/2016 01/25/2016 01/25/2016 01/25/2016

32 JOINT STATUS REPORT signed by all parties (Parris, Mark) (Entered: 01/08/2016)
33 MINUTE ORDER by Judge James L. Robart. Telephonic hearing regarding discovery dispute is set for 1/29/2016 at 09:00 AM before Judge James L. Robart. Briefs to be submitted by 12:00 p.m. on 1/25/2016. (PM) (Entered: 01/20/2016)
34 PROPOSED ORDER (Unsigned) Stipulated Protective Order (Shaver, Anne) (Entered: 01/21/2016)
35 MOTION for Discovery by Defendant Microsoft Corporation. Oral Argument Requested. (Attachments: # 1 Proposed Order Proposed Order Regarding Discovery Dispute) Noting Date 1/29/2016, (Parris, Mark) (Entered: 01/25/2016)
36 Plaintiffs' BRIEF Regarding 30(b)(6) Discovery Dispute by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Shaver, Anne) (Entered: 01/25/2016)
37 DECLARATION of Jessica R. Perry In Support of Microsoft's Memorandum of Points and Authorities Re Discovery Dispute filed by Defendant Microsoft Corporation re 35 MOTION for Discovery (Parris, Mark) (Entered: 01/25/2016)
38 DECLARATION of Martin Loughlin In Support of Microsoft's Memorandum of Points and Authorities re Discovery Dispute filed by Defendant Microsoft Corporation re 35 MOTION for Discovery (Parris, Mark) (Entered: 01/25/2016)
39 DECLARATION of Larrissa Johnson in Support of Microsoft's Memorandum of Points and Authorities Re Discovery Dispute filed by Defendant Microsoft Corporation re 35 MOTION for Discovery (Parris, Mark) (Entered: 01/25/2016)
40 DECLARATION of Shreejit Sugathan in Support of Microsoft's Memorandum of Points and Authorities Re Discovery Dispute filed by Defendant Microsoft Corporation re 35 MOTION for Discovery (Parris, Mark) (Entered: 01/25/2016)
41 PRAECIPE re 37 Declaration of Jessica R. Perry in Support of Microsoft's Memorandum of Points and Authorities re Discovery Dispute by Defendant Microsoft Corporation (Parris, Mark) (Entered: 01/25/2016)

01/26/2016 01/26/2016 01/26/2016 01/27/2016
01/27/2016
01/28/2016 01/29/2016 01/29/2016

42 APPLICATION OF ATTORNEY Wendy Butler Curtis FOR LEAVE TO APPEAR PRO HAC VICE for Defendant Microsoft Corporation (Fee Paid) Receipt No. 0981-4315415 (Parris, Mark) (Entered: 01/26/2016)
43 APPLICATION OF ATTORNEY Lauri A. Damrell FOR LEAVE TO APPEAR PRO HAC VICE for Defendant Microsoft Corporation (Fee Paid) Receipt No. 0981-4315419 (Parris, Mark) (Entered: 01/26/2016)
44 CERTIFICATE OF SERVICE by Defendant Microsoft Corporation re 43 Application for Leave to Appear Pro Hac Vice, 42 Application for Leave to Appear Pro Hac Vice (Parris, Mark) (Entered: 01/26/2016)
45 ORDER re 42 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Wendy Butler Curtis for Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 01/27/2016)
46 ORDER re 43 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Lauri A Damrell for Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 01/27/2016)
47 NOTICE of Supplemental Filing re 36 Brief ; filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Exhibit)(Shaver, Anne) (Entered: 01/28/2016)
48 STIPULATED PROTECTIVE ORDER by Judge James L. Robart. (PM) (Entered: 01/29/2016)
49 MINUTE ENTRY for proceedings held before Judge James L. RobartDep Clerk: Casey Condon; Pla Counsel: Kelly Dermody, Anne Shaver, Adam Klein, Michael Subit; Def Counsel: Mark Parris, Jessica Perry, Wendy Curtis, Lauri Damrell; CR: Nancy Bauer; Telephone Conference held on 1/29/2016. The court quashes both pending deposition notices without prejudice to future discovery. The court strikes the schedule for class discovery and the motion for class

02/08/2016 02/10/2016 03/07/2016
03/23/2016 03/25/2016 04/06/2016 04/07/2016 04/07/2016

certification, Dkt. # 19, until the court rules on the motion to dismiss, Dkt. # 23. The court rules the motion for discovery is moot, Dkt. #35. Within ten (10) days of the court's ruling on the motion to dismiss, the court directs counsel to submit an agreed schedule on class discovery and the motion for class certification. In the event the parties cannot agree, each side may propose a schedule and the court will rule. (CC) (Entered: 01/29/2016)
50 STIPULATION AND PROPOSED ORDER Concerning Production of Electronically Stored Information by parties (Attachments: # 1 Certificate of Service)(Parris, Mark) (Entered: 02/08/2016)
51 STIPULATION AND ORDER concerning production of electronically stored information by Judge James L. Robart. (RS) (Entered: 02/10/2016)
52 ORDER granting in part and denying in part Microsoft's 23 Motion to Dismiss for Failure to State a Claim; court grants plaintiffs 30 days to amend their complaint and directs parties to file a proposed class discovery and certification schedule within 15 days by Judge James L. Robart.(RS) (Entered: 03/08/2016)
53 STIPULATION AND PROPOSED ORDER on class discovery and certification schedule by parties (Shaver, Anne) (Entered: 03/23/2016)
54 MINUTE ORDER by Judge James L. Robart. The court ORDERS that Plaintiffs file their class certification motion so as to note no later than 10/7/2016. The deadline to complete discovery on class certification shall be 8/12/2016.(AD) (Entered: 03/25/2016)
55 Second AMENDED COMPLAINT against defendant(s) Microsoft Corporation with JURY DEMAND, filed by Dana Piermarini, Katherine Moussouris, Holly Muenchow. (Attachments: # 1 Exhibit A)(Shaver, Anne) (Entered: 04/06/2016)
56 APPLICATION OF ATTORNEY Yaman Salahi FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-4405004 (Lee, Sharon) (Entered: 04/07/2016)
57 ORDER re 56 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Yaman Salahi for Katherine Moussouris, Holly Muenchow, and for Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event

04/07/2016 04/07/2016
04/20/2016 04/25/2016 04/25/2016 04/25/2016
04/28/2016

the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 04/07/2016)
58 APPLICATION OF ATTORNEY Elizabeth V. Stork FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-4405598 (Lee, Sharon) (Entered: 04/07/2016)
59 ORDER re 58 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Elizabeth V Stork for Katherine Moussouris, Holly Muenchow, and for Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 04/07/2016)
60 MINUTE ORDER by Judge James L. Robart setting a telephone hearing for 5/3/2016 at 02:00 PM regarding a discovery dispute. Each party to submit up to a 4 page brief by 5:00 PM on 4/28/2016. (PM) (Entered: 04/20/2016)
61 ANSWER to 55 Amended Complaint by Microsoft Corporation.(Parris, Mark) (Entered: 04/25/2016)
62 MOTION to Dismiss Plaintiffs' Disparate Impact Claims in Second Amended Complaint by Defendant Microsoft Corporation. Oral Argument Requested. (Attachments: # 1 Proposed Order [Proposed] Order Granting Microsoft's Motion to Dismiss Plaintiffs' Disparate Impact Claims In Second Amended Complaint) Noting Date 5/20/2016, (Parris, Mark) (Entered: 04/25/2016)
63 REQUEST by Defendant Microsoft Corporation for Judicial Notice in Support of Motion to Dismiss Plaintiffs' Disparate Impact Claims in Second Amended Complaint re 62 MOTION to Dismiss Plaintiffs' Disparate Impact Claims in Second Amended Complaint (Attachments: # 1 Exhibit Exhibit A to Request for Judicial Notice, # 2 Exhibit Exhibit B to Request for Judicial Notice, # 3 Exhibit Exhibit C to Request for Judicial Notice, # 4 Exhibit Exhibit D to Request for Judicial Notice)(Parris, Mark) (Entered: 04/25/2016)
64 MOTION to Compel Responses to Microsoft's First Set of Interrogatories to Plaintiff Holly Muenchow by Defendant Microsoft Corporation. Oral Argument Requested. Noting Date 5/3/2016, (Parris, Mark) (Entered: 04/28/2016)

04/28/2016 04/28/2016 04/28/2016 05/02/2016 05/02/2016
05/03/2016
05/16/2016 05/16/2016

65 DECLARATION of Lauri A. Damrell filed by Defendant Microsoft Corporation re 64 MOTION to Compel Responses to Microsoft's First Set of Interrogatories to Plaintiff Holly Muenchow (Attachments: # 1 Exhibit A-C)(Parris, Mark) (Entered: 04/28/2016)
66 PROPOSED ORDER (Unsigned) re 64 MOTION to Compel Responses to Microsoft's First Set of Interrogatories to Plaintiff Holly Muenchow (Parris, Mark) (Entered: 04/28/2016)
67 MEMORANDUM of Law re Contention Interrogatories Discovery Dispute by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Levin-Gesundheit, Michael) (Entered: 04/28/2016)
68 APPLICATION OF ATTORNEY Rachel Geman FOR LEAVE TO APPEAR PRO HAC VICE by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini Receipt No. 0981-4434639 (Lee, Sharon) (Entered: 05/02/2016)
69 ORDER re 68 Application. The Court ADMITS Attorney Rachel J Geman for Katherine Moussouris, Holly Muenchow, and for Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 05/02/2016)
70 MINUTE ENTRY for proceedings held before Judge James L. RobartDep Clerk: Casey Condon; Pla Counsel: Kelly Dermody, Adam Klein, Anne Shaver, Michael Subit; Def Counsel: Lauri Damrell, Mark Parris; CR: Nancy Bauer; Telephone Conference held on 5/3/2016. The court hears from counsel on the Motion to Compel, Dkt. #64. For the reasons stated on the record, the court grants the motion. The court orders Plaintiff Holly Muenchow to provide responses to Microsoft's First Set of Interrogatories by noon, Wednesday, May 18, 2016. (CC) (Entered: 05/03/2016)
71 RESPONSE, by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini, to 62 MOTION to Dismiss Plaintiffs' Disparate Impact Claims in Second Amended Complaint. Oral Argument Requested. (Levin-Gesundheit, Michael) (Entered: 05/16/2016)
72 DECLARATION of Anne B. Shaver ISO Plaintiffs' Opposition to Motion to Dismiss filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 62 MOTION to Dismiss Plaintiffs'

05/16/2016 05/20/2016 05/20/2016 05/20/2016 05/23/2016
05/26/2016 05/27/2016

Disparate Impact Claims in Second Amended Complaint (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Levin-Gesundheit, Michael) (Entered: 05/16/2016)
73 DECLARATION of Holly Muenchow ISO Plaintiffs' Opposition to Motion to Dismiss filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 62 MOTION to Dismiss Plaintiffs' Disparate Impact Claims in Second Amended Complaint (LevinGesundheit, Michael) (Entered: 05/16/2016)
74 REPLY, filed by Defendant Microsoft Corporation, TO RESPONSE to 62 MOTION to Dismiss Plaintiffs' Disparate Impact Claims in Second Amended Complaint (Parris, Mark) (Entered: 05/20/2016)
75 REQUEST by Defendant Microsoft Corporation for Judicial Notice re 74 Reply to Response to Motion (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Parris, Mark) (Entered: 05/20/2016)
76 DECLARATION of Lauri A. Damrell in Support of Reply filed by Defendant Microsoft Corporation re 62 MOTION to Dismiss Plaintiffs' Disparate Impact Claims in Second Amended Complaint (Parris, Mark) (Entered: 05/20/2016)
Set/Reset Hearings: Counsel for Plaintiffs and counsel for Defendant contacted the court to request a hearing on their dispute over the temporal scope of discovery. Plaintiffs and Defendant are each to submit a brief on that issue, not to exceed five (5) pages, no later than 12:00 p.m. on Wednesday, June 1, 2016. The court will then hold an incourt hearing on the issue at 11:00 a.m. on Monday, June 6, 2016, in Courtroom 14106.(CC) (Entered: 05/23/2016)
77 APPLICATION OF ATTORNEY Cara B. Chomski FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-4465979 (Lee, Sharon) (Entered: 05/26/2016)
78 ORDER re 77 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Cara B Chomski for plaintiffs Katherine Moussouris, Holly Muenchow,and Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.
NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(CDA) (Entered: 05/27/2016)

06/01/2016 06/01/2016 06/01/2016 06/06/2016 06/10/2016
06/24/2016

79 MEMORANDUM re Set/Reset Hearings, on Dispute Regarding Temporal Scope of Class & Discovery by Defendant Microsoft Corporation (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 06/01/2016)
80 Plaintiffs' BRIEF Regarding Temporal Scope Discovery Dispute by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Shaver, Anne) (Entered: 06/01/2016)
81 DECLARATION of Lauri A. Damrell re 79 Memorandum by Defendant Microsoft Corporation (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Parris, Mark) (Entered: 06/01/2016)
82 MINUTE ENTRY for proceedings held before Judge James L. RobartDep Clerk: Casey Condon; Pla Counsel: Kelly Dermody, Michael Subit; Def Counsel: Mark Parris; CR: Nickie Drury; Status Hearing held on 6/6/2016. The court, treating this dispute as a matter of discovery and reserving judgment on the merits, holds that the the class discovery period shall begin on January 1, 2010. (CC) (Entered: 06/06/2016)
83 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 6/6/2016 before Judge James L. Robart.
Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Nickoline Drury, nickoline_drury@wawd.uscourts.gov, 206-370-8508.
Release of Transcript Restriction set for 9/8/2016, (ND) (Entered: 06/10/2016)
Set/Reset Hearings: Counsel for Plaintiffs and counsel for Defendants contacted the court to request a hearing on two separate discovery disputes. Counsel may file additional briefing, not to exceed 12 pages, on the two discovery issues raised with the court. The briefs shall be filed by noon, Thursday, July 7, 2016. A Telephone Conference is

07/07/2016 07/07/2016 07/07/2016
07/07/2016 07/07/2016 07/12/2016

scheduled Monday, July 18, 2016 at 3:30 p.m. before Judge James L. Robart. (CC) (Entered: 06/24/2016)
Counsel for Plaintiffs and counsel for Defendant contacted the court, and Defendants requested additional briefing on a separate merits issue to be taken up in conjunction with the court's July 18, 2016, telephone conference. Plaintiffs opposed that request. The court denies Defendant's request for additional briefing on the issue and will take up the parties' proposals for how to address the issue at the July 18, 2016, telephonic hearing. (VE) (Entered: 07/07/2016)
84 MEMORANDUM Plaintiffs Memorandum Of Law Regarding Internal Employee Complaints And Company Audits Discovery Dispute by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Shaver, Anne) (Entered: 07/07/2016)
85 DECLARATION of YAMAN SALAHI re 84 Memorandum by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(Shaver, Anne) (Entered: 07/07/2016)
86 MOTION to Quash Plaintiffs' Request for Internal Investigation Files and Approve Use of a Categorical Privilege Log by Defendant Microsoft Corporation. (Attachments: # 1 Proposed Order) Noting Date 7/18/2016, (Parris, Mark) (Entered: 07/07/2016)
87 DECLARATION of Lauri A. Damrell filed by Defendant Microsoft Corporation re 86 MOTION to Quash Plaintiffs' Request for Internal Investigation Files and Approve Use of a Categorical Privilege Log (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Parris, Mark) (Entered: 07/07/2016)
Set/Reset Hearings: Counsel for Plaintiffs and counsel for Defendant contacted the court regarding a miscommunication related to the pending discovery disputes. The court STRIKES the July 18, 2016, telephone conference on those disputes and reschedules that telephone conference for Tuesday, July 26, 2016, at 4:00 PM. The court GRANTS each party an additional six (6) pages of briefing on the discovery disputes, to be submitted no later than 12:00 PM on Wednesday, July 20, 2016. (RS) (Entered: 07/12/2016)

07/14/2016 07/20/2016 07/20/2016 07/20/2016 07/20/2016 07/20/2016
07/20/2016 07/26/2016 08/01/2016

Set/Reset Hearings: The Telephone Conference scheduled July 26, 2016 is continued to Tuesday, August 2, 2016 at 9:00 a.m. before Judge James L. Robart. (CC) (Entered: 07/14/2016)
88 Supplemental MOTION to Quash Plaintiffs' Request for Internal Analyses and Approve Use of Categorical Privilege Log by Defendant Microsoft Corporation. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 8/2/2016, (Parris, Mark) (Entered: 07/20/2016)
89 Supplemental DECLARATION of Lauri A. Damrell filed by Defendant Microsoft Corporation re 88 Supplemental MOTION to Quash Plaintiffs' Request for Internal Analyses and Approve Use of Categorical Privilege Log (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Parris, Mark) (Entered: 07/20/2016)
90 DECLARATION of Kimberly Meyers filed by Defendant Microsoft Corporation re 88 Supplemental MOTION to Quash Plaintiffs' Request for Internal Analyses and Approve Use of Categorical Privilege Log (Parris, Mark) (Entered: 07/20/2016)
91 MEMORANDUM filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 86 MOTION to Quash Plaintiffs' Request for Internal Investigation Files and Approve Use of a Categorical Privilege Log (Miazad, Ossai) (Entered: 07/20/2016)
92 DECLARATION of Ossai Miazad filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 86 MOTION to Quash Plaintiffs' Request for Internal Investigation Files and Approve Use of a Categorical Privilege Log (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Miazad, Ossai) (Entered: 07/20/2016)
93 PRAECIPE to attach document Corrected Plaintiffs' Supplemental Memorandum of Law re 91 Memorandum, by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Supplement Corrected)(Miazad, Ossai) (Entered: 07/20/2016)
94 PRAECIPE to attach document Exhibits E and F re 92 Declaration, by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit E, # 2 Exhibit F)(Miazad, Ossai) (Entered: 07/26/2016)
95 MOTION to Seal Documents Attached to Declaration of Kelly Dermody by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 8/2/2016, (Salahi, Yaman) (Entered: 08/01/2016)

08/01/2016

96 DECLARATION of Kelly M. Dermody filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 86 MOTION to Quash Plaintiffs' Request for Internal Investigation Files and Approve Use of a Categorical Privilege Log, 88 Supplemental MOTION to Quash Plaintiffs' Request for Internal Analyses and Approve Use of Categorical Privilege Log, 95 MOTION to Seal Documents Attached to Declaration of Kelly Dermody (Attachments: # 1 Exhibit Sealed Exhibit A, # 2 Exhibit Sealed Exhibit B)(Salahi, Yaman) (Entered: 08/01/2016)

08/01/2016

97 SEALED DOCUMENT Exhibit A to Declaration of Kelly Dermody by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 95 MOTION to Seal Documents Attached to Declaration of Kelly Dermody, 96 Declaration,, (Salahi, Yaman) (Entered: 08/01/2016)

08/01/2016

98 SEALED DOCUMENT Exhibit B to Declaration of Kelly Dermody by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 95 MOTION to Seal Documents Attached to Declaration of Kelly Dermody, 96 Declaration,, (Salahi, Yaman) (Entered: 08/01/2016)

08/01/2016

99 MOTION Request to Take Judicial Notice Related to Discovery Dispute on Internal Audits by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Salahi, Yaman) (Entered: 08/01/2016)

08/02/2016

100 MINUTE ENTRY for proceedings held before Judge James L. RobartDep Clerk: Casey Condon; Pla Counsel: Kelly Dermody,Adam Klein, Michael Subit; Def Counsel: Mark Parris, Lauri Damrell; CR: Nancy Bauer; Telephone Conference held on 8/2/2016. For the reasons stated on the record, the court grants in part and denies in part the Motions to Quash, Dkt. ##86,88. A written order to follow. The court directs the clerk to note the Motion/Request to take Judicial Notice, Dkt. #99, as a two week motion. (CC) (Entered: 08/02/2016)

08/02/2016

Noting Date Set/Reset re 99 MOTION Request to Take Judicial Notice Related to Discovery Dispute on Internal Audits : Noting Date 8/12/2016. (CC) (Entered: 08/02/2016)

08/03/2016

101 ORDER by Judge James L. Robart. The court GRANTS either party leave to file a dispositive motion on the relevant liability period; the court VACATES the current deadlines for class discovery and class certification (Dkt. # 54 ); the court ORDERS class discovery be completed no later than 10/14/2016; parties ORDERED to file a Joint Status Report no later than 9/21/2016; Clerk to note Plaintiffs' 99 motion for judicial notice for 8/12/2016. (AD) (Entered: 08/03/2016)

08/03/2016 102 ORDER by Judge James L. Robart granting Plaintiffs' 95 Motion to Seal. (AD) (Entered: 08/03/2016)

08/03/2016

103 NOTICE to Withdraw Pending Motion re 99 MOTION Request to Take Judicial Notice Related to Discovery Dispute on Internal Audits ; by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Dermody, Kelly) (Entered: 08/03/2016)

08/17/2016 104 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of telephone conference held on 8/2/2016 before Judge James L. Robart.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Nancy Bauer, nancy_bauer@wawd.uscourts.gov, 206-370-8506.

Release of Transcript Restriction set for 11/15/2016, (NB) (Entered: 08/17/2016)

08/19/2016

105 STIPULATION AND PROPOSED ORDER Regarding Joint Proposed Briefing Scheduled for Motions to Establish Liability Period by parties (Attachments: # 1 Certificate of Service Attachment #1)(Miazad, Ossai) (Entered: 08/19/2016)

08/19/2016 106 STATUS MEMORANDUM re Class Briefing Schedule and Privilege Logs by Defendant Microsoft Corporation (Parris, Mark) (Entered: 08/19/2016)

08/22/2016

107 MINUTE ORDER by Judge James L. Robart granting parties' 105 Stipulated motion regarding a joint proposed briefing schedule for motions to establish the relevant liability period. A joint statement of the issue to be briefed is due 8/26/2016; Opening briefs due 9/8/2016; Opposition briefs due 9/26/2016. No reply shall be filed. (PM) (Entered: 08/22/2016)

08/24/2016 108 ORDER by Judge James L. Robart re 106 Joint Submission regarding the class briefing schedule and Defendant Microsoft's privilege logs.

The court adopts the parties' proposed class briefing schedule and extends until 9/2/2016 the deadline for the parties to resolve or submit to the court any privilege log dispute. (PM) (Entered: 08/24/2016)

08/26/2016

109 STATEMENT of All Parties re 107 Minute Order, re Issue to be Decided on Cross-Motions to Establish Relevant Liability Period Under Washington Law by Defendant Microsoft Corporation (Parris, Mark) (Entered: 08/26/2016)

08/28/2016

Counsel for Plaintiffs and counsel for Defendant contacted the court to raise an issue regarding the class discovery period. The court orders the parties to file opening briefs of three pages or fewer no later than 5:00 p.m. on Tuesday, August 30, 2016, and response briefs of two pages or fewer no later than 5:00 p.m. on Thursday, September 1, 2016. The parties must agree on a joint statement of the issue and include that statement in their opening briefs. After reviewing the briefing, the court will determine whether a telephonic hearing on the issue is warranted. (DM) (Entered: 08/28/2016)

08/30/2016

110 MOTION Defendant Microsoft Corporation's Opening Brief re Class Discovery Period by Defendant Microsoft Corporation. Oral Argument Requested. Noting Date 9/30/2016, (Parris, Mark) (Entered: 08/30/2016)

08/30/2016

111 DECLARATION of Jessica Perry filed by Defendant Microsoft Corporation re 110 MOTION Defendant Microsoft Corporation's Opening Brief re Class Discovery Period (Parris, Mark) (Entered: 08/30/2016)

08/30/2016

112 MEMORANDUM re Docket Annotation,, PLAINTIFFS' MEMORANDUM OF LAW REGARDING EFFECTUATION OF THIS COURT'S ORDER THAT "THE CLASS DISCOVERY PERIOD SHALL BEGIN ON JANUARY 1, 2010" (DKT. NO. 82) by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Dermody, Kelly) (Entered: 08/30/2016)

09/01/2016 113 REPLY, filed by Defendant Microsoft Corporation, TO RESPONSE to 110 MOTION Defendant Microsoft Corporation's Opening Brief re Class Discovery Period (Parris, Mark) (Entered: 09/01/2016)

09/01/2016

114 RESPONSE, by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini, to 110 MOTION Defendant Microsoft Corporation's Opening Brief re Class Discovery Period . (Miazad, Ossai) (Entered: 09/01/2016)

09/01/2016 115 DECLARATION of Adam T. Klein re 114 Response to Motion by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini

(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Miazad, Ossai) (Entered: 09/01/2016)

09/01/2016

116 CERTIFICATE OF SERVICE by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 115 Declaration (non motion), 114 Response to Motion (Miazad, Ossai) (Entered: 09/01/2016)

09/02/2016

Set/Reset Hearings: In-court Hearing scheduled Thursday, September 8, 2016 at 10:30 a.m. before Judge James L. Robart. The hearing will address the parties' dispute over class discovery. (CC) (Entered: 09/02/2016)

09/02/2016

Set/Reset Hearings: At the request of counsel, the In-court Hearing scheduled September 8, 2016 is rescheduled for Wednesday, September 7, 2016 at 10:00 a.m. before Judge James L. Robart. (CC) (Entered: 09/02/2016)

09/02/2016 117 STATUS MEMORANDUM Joint Submission re Privilege Logs by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Dermody, Kelly) (Entered: 09/02/2016)

09/06/2016

118 NOTICE of Change of Address/Change of Name of Attorney Elizabeth V Stork. Filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Stork, Elizabeth) Modified Firm Address on 9/7/2016 (DS). (Entered: 09/06/2016)

09/06/2016

119 NOTICE of Change of Address/Change of Name of Attorney Ossai Miazad. Filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Miazad, Ossai) Modified Firm Address on 9/7/2016 (DS). (Entered: 09/06/2016)

09/07/2016

120 MINUTE ENTRY for proceedings held before Judge James L. RobartDep Clerk: Casey Condon; Pla Counsel: Kelly Dermody, Michael Subit; Def Counsel: Mark Parris; CR: Andrea Ramirez; Status Conference held on 9/7/2016. For the reasons stated on the record, the court ORDERS that the scope of class discovery include employees that did not work at Microsoft during what Microsoft argues is the WLAD liability period, ORDERS Microsoft to provide individualized privilege logs subject to the exceptions that Plaintiffs identify in their briefing, SUSPENDS the Local Civil Rule regarding expedited motions, ORDERS the parties to submit any future disputes in the form of a joint letter to the court setting forth the issue to be decided, and ORDERS Microsoft to have its chief legal officer, director of litigation, or director of human resources litigation sign all future filings. (CC) (Entered: 09/07/2016)

09/08/2016

121 MOTION Microsoft's Motion Pursuant to Fed. R. Civ. P. 23(D) to Establish Potential Liability Period Under Washington Law by Defendant Microsoft Corporation. Oral Argument Requested. (Attachments: # 1 Proposed Order Proposed Order Granting Microsoft's Motion Pursuant to Fed. R. Civ. P. 23(D) to Establish Potential Liability Period) Noting Date 9/30/2016, (Parris, Mark) (Entered: 09/08/2016)

09/08/2016

122 MEMORANDUM re Docket Annotation, PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR AN ORDER ESTABLISHING THAT THE WLAD LIABILITY PERIOD BEGINS ON MAY 14, 2011 by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Miazad, Ossai) (Entered: 09/08/2016)

09/08/2016

123 DECLARATION In Support Of Motion For An Order Establishing That The WLAD Liability Period Begins On May 14, 2011 of Adam T. Klein re 122 Memorandum, by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Miazad, Ossai) (Entered: 09/08/2016)

09/08/2016

124 PROPOSED ORDER (Unsigned) re 122 Memorandum, by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Miazad, Ossai) (Entered: 09/08/2016)

09/08/2016 125 CERTIFICATE OF SERVICE by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 122 Memorandum, 124 Proposed Order (Unsigned) (Miazad, Ossai) (Entered: 09/08/2016)

09/14/2016 126 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference held on 9/7/2016 before Judge James L. Robart.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Andrea Ramirez, andrea_ramirez@wawd.uscourts.gov, 206-370-8509.

Release of Transcript Restriction set for 12/13/2016, (AR) (Entered: 09/14/2016)

09/15/2016

127 NOTICE of Change of Address/Change of Name of Attorney Adam T Klein. Filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Klein, Adam) Modified Address on 9/15/2016 (DS). (Entered: 09/15/2016)

09/15/2016

128 NOTICE of Change of Address/Change of Name of Attorney Cara B Chomski. Filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Chomski, Cara) (Entered: 09/15/2016)

09/21/2016 129 JOINT STATUS REPORT signed by all parties (Parris, Mark) (Entered: 09/21/2016)

09/23/2016

130 MOTION to Continue Class Discovery and Briefing Schedule by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order)(Dermody, Kelly) (Entered: 09/23/2016)

09/26/2016

131 RESPONSE, by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini, to 121 MOTION Microsoft's Motion Pursuant to Fed. R. Civ. P. 23(D) to Establish Potential Liability Period Under Washington Law . (Miazad, Ossai) (Entered: 09/26/2016)

09/26/2016

132 MEMORANDUM re 122 Memorandum, Opposition to Plaintiffs' Memorandum re Docket Annotation, Plaintiffs' Memorandum of Law in Support of Motion for An Order Establishing That the WLAD Liability Period Begins on May 14, 2011 by Defendant Microsoft Corporation (Parris, Mark) (Entered: 09/26/2016)

09/27/2016 133 ORDER granting plaintiff's 130 Motion to modify class discovery and briefing schedule by Judge James L. Robart.(RS) (Entered: 09/28/2016)

10/14/2016

134 ORDER by Judge James L. Robart. The court DENIES Microsoft's 62 motion to dismiss, GRANTS Microsoft's 121 motion to establish that the potential liability period under Washington law begins on 9/16/2012, DENIES Plaintiffs' 122 motion to establish that the potential liability period under Washington law begins on 5/14/2011, and ORDERS that in subsequent proceedings, the parties treat 9/16/2012, as the operative date to define the putative class under the WLAD. (AD) (Entered: 10/14/2016)

12/15/2016

135 STATEMENT Joint Statement re Completion of Class Discovery and Proposed Modification of Class Discovery and Briefing Schedule by Defendant Microsoft Corporation (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 12/15/2016)

12/21/2016

136 ORDER by Judge James L. Robart re parties' 135 joint motion to modify case schedule. The court VACATES the class certification and expert witness briefing schedule and orders parties to propose a briefing schedule on class certification and expert witnesses by 3/3/2017. The court intends to appoint a special master to oversee selected discovery issues. Parties opposing appointment are to file a brief by 12/28/2016. (PM) (Entered: 12/22/2016)

01/30/2017 137 LETTER from counsel containing joint request to modify schedule and for FRE 502(d) order. (AD) (Entered: 02/09/2017)

02/09/2017

138 ORDER granting parties leave to file their letter 137 in the form of a joint motion and proposed order; while the motion is pending the court suspends the 2/10/17 deadline for plaintiffs' brief re pre-class certification privilege log challenges by Judge James L. Robart. (RS) (Entered: 02/09/2017)

02/14/2017

139 Joint MOTION for Modification of Discovery and Briefing Schedule and Request for Entry of Rule 502(d) Order re 138 Order, Directing the Parties to File Joint Motion and Proposed Order, filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order [Proposed] Order Modifying Discovery and Briefing Schedule, # 2 Proposed Order [Proposed] Rule 502(d) Order Regarding the Disclosure of Privileged and Protected Information) Noting Date 4/14/2017, (Levin-Gesundheit, Michael) (Entered: 02/14/2017)

02/15/2017

140 RULE 502(D) ORDER REGARDING THE DISCLOSURE OF PRIVILEGED AND PROTECTED INFORMATION by Judge James L. Robart granting 139 Joint Motion. (PM) (Entered: 02/15/2017)

02/15/2017 141 ORDER MODIFYING DISCOVERY AND BRIEFING SCHEDULE by Judge James L. Robart. (RS) (Entered: 02/16/2017)

02/23/2017

142 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Katrina L Eiland for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Eiland, Katrina) (Entered: 02/23/2017)

03/02/2017 143 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Cara B Chomski for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Stork, Elizabeth) (Entered: 03/02/2017)

03/24/2017

144 MOTION to Seal , filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 4/14/2017, (Levin-Gesundheit, Michael) Modified docket text on 3/27/2017 (SWT). (Entered: 03/24/2017)

03/24/2017

145 SEALED MOTION to Compel; re 144 MOTION to Seal ; by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 4/14/2017, (LevinGesundheit, Michael) Modified docket text on 3/27/2017 (SWT). (Entered: 03/24/2017)

03/24/2017

146 SEALED DOCUMENT Declaration of Anne Shaver by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 144 MOTION to Seal , 145 SEALED MOTION to Compel; re 144 MOTION to Seal ; (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Shaver, Anne) (Entered: 03/24/2017)

03/24/2017

147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product, filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 4/14/2017, (Shaver, Anne) (Entered: 03/24/2017)

03/24/2017

148 DECLARATION of Anne B. Shaver filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Shaver, Anne) (Entered: 03/24/2017)

04/08/2017

149 Joint MOTION for Extension of Time to Propose Briefing Schedule, filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Shaver, Anne) (Entered: 04/08/2017)

04/10/2017

150 MOTION to Seal Documents Submitted in Support of Opposition to Motion to Compel, filed by Defendant Microsoft Corporation. (Attachments: # 1 Proposed Order) Noting Date 4/21/2017, (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

151 DECLARATION of Lauri A. Damrell filed by Defendant Microsoft Corporation re 150 MOTION to Seal Documents Submitted in Support of Opposition to Motion to Compel (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Parris, Mark) (Entered: 04/10/2017)

04/10/2017 152 RESPONSE, by Defendant Microsoft Corporation, to 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to

Compel Production of Documents Withheld for Privilege/Work Product. Oral Argument Requested. (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 04/10/2017)

04/10/2017

153 DECLARATION of Lauri A. Damrell filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Parris, Mark) (Entered: 04/10/2017)

04/10/2017

154 DECLARATION of Dev Stahlkopf filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

155 DECLARATION of Amy Pannoni filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

156 DECLARATION of Kris D. Meade filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

157 DECLARATION of Jack Chen filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Attachments: # 1 Exhibit A)(Parris, Mark) (Entered: 04/10/2017)

04/10/2017

158 DECLARATION of G. Edward Anderson filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

159 DECLARATION of Shad Morris filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Attachments: # 1 Exhibit A)(Parris, Mark) (Entered: 04/10/2017)

04/10/2017 160 DECLARATION of Shinder Dhillon filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION

to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

161 DECLARATION of Brenda Nakano filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

162 DECLARATION of Jeff Furey filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

163 DECLARATION of Katie Metcalf filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

164 DECLARATION of Taylor Dale-Benson filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

165 DECLARATION of Jenny Countryman filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

166 DECLARATION of Corey Kalbfleisch filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

167 DECLARATION of Frank Shaw filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

168 DECLARATION of Kim Kalletta filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

169 DECLARATION of Marissa Berry filed by Defendant Microsoft Corporation re 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

170 SEALED DOCUMENT Opposition to Motion to Compel by Defendant Microsoft Corporation re 150 MOTION to Seal Documents Submitted in Support of Opposition to Motion to Compel, 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

171 SEALED DOCUMENT Exhibits A and K to Damrell Declaration by Defendant Microsoft Corporation re 150 MOTION to Seal Documents Submitted in Support of Opposition to Motion to Compel, 153 Declaration, (Attachments: # 1 Exhibit)(Parris, Mark) (Entered: 04/10/2017)

04/10/2017

172 SEALED DOCUMENT Declaration of Dev Stahlkopf by Defendant Microsoft Corporation re 150 MOTION to Seal Documents Submitted in Support of Opposition to Motion to Compel, 154 Declaration, (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

173 SEALED DOCUMENT Declaration of Amy Pannoni by Defendant Microsoft Corporation re 150 MOTION to Seal Documents Submitted in Support of Opposition to Motion to Compel, 155 Declaration, (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

174 SEALED DOCUMENT Declaration of Kris Meade by Defendant Microsoft Corporation re 150 MOTION to Seal Documents Submitted in Support of Opposition to Motion to Compel, 156 Declaration, (Parris, Mark) (Entered: 04/10/2017)

04/10/2017

175 SEALED DOCUMENT Exhibit A to Chen Declaration by Defendant Microsoft Corporation re 150 MOTION to Seal Documents Submitted in Support of Opposition to Motion to Compel, 157 Declaration, (Parris, Mark) (Entered: 04/10/2017)

04/11/2017

176 ORDER RE: BRIEFING SCHEDULE FOR CLASS CERTIFICATION AND EXPERT WITNESSES granting 149 Joint Motion for Extension of Time. Parties to jointly submit a proposed schedule within three business days after the Court rules on the motion to compel. Signed by Judge James L. Robart. (PM) (Entered: 04/11/2017)

04/12/2017

Set/Reset Hearings: Telephonic hearing regarding the status of discovery following the court's ruling on the pending motion to compel (Dkt. # 145 ) is set for Tuesday, April 18, 2017 at 10:00 a.m. before Judge James L. Robart. (AD) (Entered: 04/12/2017)

04/12/2017 177 RESPONSE, by Defendant Microsoft Corporation, to 144 MOTION to Seal . (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 04/12/2017)

04/12/2017 178 DECLARATION of Shinder Dhillon filed by Defendant Microsoft Corporation re 144 MOTION to Seal (Parris, Mark) (Entered: 04/12/2017)

04/12/2017

179 DECLARATION of Lauri A. Damrell filed by Defendant Microsoft Corporation re 144 MOTION to Seal (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Parris, Mark) (Entered: 04/12/2017)

04/12/2017

180 SEALED DOCUMENT Exhibit 2 to Declaration of Lauri A. Damrell ISO Response to Plaintiffs' Motion to Seal by Defendant Microsoft Corporation re 144 MOTION to Seal (Parris, Mark) (Entered: 04/12/2017)

04/14/2017

181 MOTION to Seal , filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 5/5/2017, (Levin-Gesundheit, Michael) (Entered: 04/14/2017)

04/14/2017

182 REPLY, filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini, TO RESPONSE to 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Levin-Gesundheit, Michael) (Entered: 04/14/2017)

04/14/2017

183 DECLARATION of Anne B. Shaver filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Levin-Gesundheit, Michael) (Entered: 04/14/2017)

04/14/2017

184 SEALED DOCUMENT Reply In Support of Motion to Compel by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 181 MOTION to Seal , 145 SEALED MOTION to Compel; re 144 MOTION to Seal ; (Levin-Gesundheit, Michael) (Entered: 04/14/2017)

04/14/2017

185 SEALED DOCUMENT Declaration of Anne B. Shaver In Support of Plaintiffs' Reply Re Motion to Compel by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 181 MOTION to Seal , 145 SEALED MOTION to Compel; re 144 MOTION to Seal ; (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit

D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Levin-Gesundheit, Michael) (Entered: 04/14/2017)

04/14/2017 186 PROPOSED ORDER (Unsigned) re 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product (Revised) (Levin-Gesundheit, Michael) (Entered: 04/14/2017)

04/18/2017

187 MINUTE ENTRY for proceedings held before Judge James L. Robart Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Kelly Dermody; Def Counsel: Mark Parris; CR: Andrea Ramirez; Telephone Conference held on 4/18/2017. The court hears from counsel re: the status of discovery and class certification following the court's ruling on Plaintiffs' Motion to Compel (Dkt. # 145 ). The court indicated its intent to appoint Michelle Petersen as Special Master over discovery with the potential for other duties. Defendant consented to appointment of Michelle Petersen as Special Master. Plaintiffs' counsel deferred at the hearing but contacted the court shortly thereafter and consented to Ms. Petersen's appointment. By close of business on Wednesday, April 26, 2017, the parties are directed to submit statements regarding the scope and duties of the Special Master under Rule 53. (AD) (Entered: 04/18/2017)

04/26/2017

188 STATEMENT re 187 Telephone Conference,,, Plaintiffs' Submission Regarding Appointment of Special Master by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit Attachment A)(Dermody, Kelly) (Entered: 04/26/2017)

04/26/2017 189 STATEMENT re 187 Telephone Conference,,, regarding the Appointment of the Special Master by Defendant Microsoft Corporation (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 04/26/2017)

04/26/2017

190 DECLARATION of Lauri A. Damrell re 189 Statement by Defendant Microsoft Corporation (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Parris, Mark) (Entered: 04/26/2017)

05/02/2017

191 ORDER APPOINTING SPECIAL MASTER by Judge James L. Robart. The court appoints Michelle Peterson as Special Master to assist with Plaintiffs' motion to compel 145 147 and other matters as the court may assign after notice to the parties. (Attachments: # 1 Rule 53 Declaration of Michelle Peterson) (PM) (Entered: 05/02/2017)

05/03/2017 192 RESPONSE, by Defendant Microsoft Corporation, to 181 MOTION to Seal . (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 05/03/2017)

05/03/2017 193 DECLARATION of Lauri A. Damrell filed by Defendant Microsoft Corporation re 181 MOTION to Seal (Attachments: # 1 Exhibit 1a, # 2 Exhibit 1b, # 3 Exhibit 2)(Parris, Mark) (Entered: 05/03/2017)

05/25/2017 194 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephone Conference held on 4/18/2017 before Judge James L. Robart.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Andrea Ramirez, andrea_ramirez@wawd.uscourts.gov, 206-370-8509.

Release of Transcript Restriction set for 8/23/2017, (AR) (Entered: 05/25/2017)

06/01/2017 195 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Yaman Salahi for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Salahi, Yaman) (Entered: 06/01/2017)

06/12/2017

196 SEALED MOTION to Report and Recommendation; re 191 Order, 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 181 MOTION to Seal , 144 MOTION to Seal , 150 MOTION to Seal Documents Submitted in Support of Opposition to Motion to Compel, 147 MOTION to Compel Production of Documents Withheld for Privilege/Work Product ; by Special Master Michelle Peterson. Noting Date 6/22/2017, (Peterson, Michelle) (Entered: 06/12/2017)

06/21/2017

197 STIPULATION AND PROPOSED ORDER re Briefing Schedule for Objections to the Special Master's Report and Recommendation by parties re 196 SEALED MOTION to Report and Recommendation; re 191 Order, 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 181 MOTION to Seal , 144 MOTION to Seal (Parris, Mark) (Entered: 06/21/2017)

06/21/2017 198 STIPULATION AND ORDER re briefing schedule for objections to the Special Master's 196 Report and Recommendation. Plaintiffs' limited objections due 7/6/2017; Defendant's response due 7/12/2017;

Plaintiffs' reply due 7/14/2017. Signed by Judge James L. Robart. (PM) (Entered: 06/21/2017)

06/22/2017

199 MOTION to Seal , filed by Plaintiffs Holly Muenchow, Dana Piermarini, Katherine Moussouris Special Master Michelle Peterson. (Attachments: # 1 Proposed Order) Noting Date 6/30/2017, (LevinGesundheit, Michael) Modified on 6/23/2017 (PS). (Entered: 06/22/2017)

06/22/2017

200 SEALED DOCUMENT Joint Statement Regarding Sealing Portions of Special Master's Report and Recommendation by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 199 MOTION to Seal (Attachments: # 1 Exhibit A)(LevinGesundheit, Michael) (Entered: 06/22/2017)

06/22/2017

201 STATEMENT Joint Statement Regarding Sealing Portions of Special Master's Report and Recommendation by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit A)(Levin-Gesundheit, Michael) (Entered: 06/22/2017)

06/22/2017

202 PROPOSED ORDER (Unsigned) re 201 Statement Regarding Sealing Portions of Special Master's Report and Recommendation (Parris, Mark) (Entered: 06/22/2017)

06/23/2017

NOTICE of Docket Text Modification re 199 MOTION to Seal : Amended docket text to correctly indicate Plaintiff Moussouris as filer. Per counsel, Special Master Peterson had been selected in error. (PS) (Entered: 06/23/2017)

06/23/2017

203 DECLARATION in Response to Special Master's Report and Recommendation of Katie Metcalf re 196 SEALED MOTION to Report and Recommendation; re 191 Order, 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 181 MOTION to Seal , 144 MOTION to Seal by Defendant Microsoft Corporation (Parris, Mark) (Entered: 06/23/2017)

07/06/2017

204 MOTION to Seal Partial Objection to Special Master's Report and Recommendation, filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 7/14/2017, (Shaver, Anne) (Entered: 07/06/2017)

07/06/2017

205 OPENING BRIEF Plaintiffs' Consent In Part and Objection In Part To Special Master's Report and Recommendation by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Shaver, Anne) (Entered: 07/06/2017)

07/06/2017

206 DECLARATION of Michael Levin-Gesundheit re 205 Brief - Opening by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Shaver, Anne) (Entered: 07/06/2017)

07/06/2017

207 SEALED DOCUMENT Plaintiffs' Consent In Part and Objection In Part To Special Master's Report and Recommendation by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 204 MOTION to Seal Partial Objection to Special Master's Report and Recommendation (Shaver, Anne) (Entered: 07/06/2017)

07/06/2017

208 SEALED DOCUMENT Declaration of Michael Levin-Gesundheit by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 204 MOTION to Seal Partial Objection to Special Master's Report and Recommendation, 207 Sealed Document, (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Shaver, Anne) (Entered: 07/06/2017)

07/12/2017

209 RESPONSE, by Defendant Microsoft Corporation, to 204 MOTION to Seal Partial Objection to Special Master's Report and Recommendation. (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 07/12/2017)

07/12/2017

210 DECLARATION of Lauri A. Damrell filed by Defendant Microsoft Corporation re 204 MOTION to Seal Partial Objection to Special Master's Report and Recommendation (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit A, # 4 Exhibit D, # 5 Exhibit E)(Parris, Mark) (Entered: 07/12/2017)

07/12/2017

211 DECLARATION of Dev Stahlkopf filed by Defendant Microsoft Corporation re 204 MOTION to Seal Partial Objection to Special Master's Report and Recommendation (Parris, Mark) (Entered: 07/12/2017)

07/12/2017

212 MOTION to Seal Opposition to Plaintiffs' Objection to the Special Master's Report and Recommendation, filed by Defendant Microsoft Corporation. (Attachments: # 1 Proposed Order) Noting Date 7/21/2017, (Parris, Mark) (Entered: 07/12/2017)

07/12/2017

213 RESPONSE by Defendant Microsoft Corporation re 205 Brief Opening, 196 SEALED MOTION to Report and Recommendation; re 191 Order, 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 181 MOTION to Seal , 144 MOTION to Seal, 207 Sealed Document, (Parris, Mark) (Entered: 07/12/2017)

07/12/2017 214 SEALED DOCUMENT Opposition to Plaintiffs' Objection to the Special Master's Report and Recommendation by Defendant Microsoft

Corporation re 212 MOTION to Seal Opposition to Plaintiffs' Objection to the Special Master's Report and Recommendation, 205 Brief - Opening, 196 SEALED MOTION to Report and Recommendation; re 191 Order, 145 SEALED MOTION to Compel; re 144 MOTION to Seal ;, 181 MOTION to Seal , 144 MOTION to Seal, 207 Sealed Document, (Parris, Mark) (Entered: 07/12/2017)

07/14/2017

215 MOTION to Seal Reply ISO Plaintiffs' Consent In Part and Objection In Part To Special Master's Report and Recommendation, filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 7/21/2017, (LevinGesundheit, Michael) (Entered: 07/14/2017)

07/14/2017

216 SEALED DOCUMENT Reply ISO Plaintiffs' Consent In Part and Objection In Part To Special Master's Report and Recommendation by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 215 MOTION to Seal Reply ISO Plaintiffs' Consent In Part and Objection In Part To Special Master's Report and Recommendation, 207 Sealed Document, (Levin-Gesundheit, Michael) (Entered: 07/14/2017)

07/14/2017

217 SEALED DOCUMENT Declaration of Michael Levin-Gesundheit ISO Plaintiffs' Reply ISO Consent In Part and Objection In Part to Special Master's Report and Recommenation by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 215 MOTION to Seal Reply ISO Plaintiffs' Consent In Part and Objection In Part To Special Master's Report and Recommendation (Attachments: # 1 Exhibit A)(Levin-Gesundheit, Michael) (Entered: 07/14/2017)

07/14/2017

218 REPLY BRIEF ISO Plaintiffs' Consent in Part and Objection in Part to Special Master's Report and Recommenation re 205 Brief - Opening by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Levin-Gesundheit, Michael) (Entered: 07/14/2017)

07/14/2017

219 DECLARATION ISO Plaintiffs' Reply ISO Consent in Part and Objection in Part to Special Master's Report and Recommendation of Michael Levin-Gesundheit re 218 Brief - Reply, by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit A)(Levin-Gesundheit, Michael) (Entered: 07/14/2017)

07/17/2017

Noting Date Reset per direction of chambers: Plaintiffs' 215 MOTION to Seal Reply ISO Plaintiffs' Consent In Part and Objection In Part To Special Master's Report and Recommendation : Noting Date 7/28/2017. (PM) (Entered: 07/17/2017)

07/26/2017

220 RESPONSE, by Defendant Microsoft Corporation, to 215 MOTION to Seal Reply ISO Plaintiffs' Consent In Part and Objection In Part To Special Master's Report and Recommendation. (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 07/26/2017)

07/26/2017

221 DECLARATION of Lauri A. Damrell filed by Defendant Microsoft Corporation re 215 MOTION to Seal Reply ISO Plaintiffs' Consent In Part and Objection In Part To Special Master's Report and Recommendation (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Parris, Mark) (Entered: 07/26/2017)

07/26/2017

222 DECLARATION of Dev Stahlkopf filed by Defendant Microsoft Corporation re 215 MOTION to Seal Reply ISO Plaintiffs' Consent In Part and Objection In Part To Special Master's Report and Recommendation (Parris, Mark) (Entered: 07/26/2017)

07/27/2017

223 ORDER PRELIMINARILY FILED UNDER SEAL by Judge James L. Robart. The court OVERRULES Plaintiffs' objection to the report and recommendation (Dkt. ## 205 , 207 ), ADOPTS the report and recommendation (Dkt. # 196 ), and GRANTS in part and DENIES in part Plaintiffs' motion to compel (Dkt. ## 145 , 147 ). The court GRANTS the pending motions to seal (Dkt. ## 144 , 150 , 181 , 199 , 204 , 212 , 215 ) and GRANTS Microsoft's request to redact portions of the report and recommendation (Dkt. ## 200 -01). Finally, the court DIRECTS the Clerk to file this order preliminarily under seal and ORDERS the parties to meet and confer and submit additional materials as detailed above. (PM) cc: order emailed to counsel (Entered: 07/27/2017)

08/07/2017

224 STATEMENT re 223 Sealed Order,,,, Terminate Motions,,, Regarding Sealed Documents by Defendant Microsoft Corporation (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 3-1, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19)(Parris, Mark) (Entered: 08/07/2017)

08/07/2017

225 STATEMENT of All Parties re 223 Sealed Order,,,, Terminate Motions,,, 176 Order on Motion for Extension of Time, Regarding Class Discovery and Briefing Schedule and Proposed Redactions to the Court's Order by Defendant Microsoft Corporation (Attachments: # 1 Exhibit A)(Parris, Mark) (Entered: 08/07/2017)

08/10/2017

226 JOINT STATEMENT AND ORDER RE CLASS DISCOVERY AND BRIEFING SCHEDULE AND REDACTIONS TO THE COURT'S ORDER re 223 Order Preliminarily Filed Under Seal. Signed by Judge James L. Robart. (PM) (Entered: 08/10/2017)

10/27/2017

227 MOTION to Seal , filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 12/1/2017, (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017

228 SEALED MOTION to Certify Class; re 227 MOTION to Seal ; by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 2/9/2018, (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017

229 SEALED DOCUMENT Declaration of Anne B. Shaver In Support of Plaintiffs' Motion to Certify Class by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 227 MOTION to Seal (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D UNSEALED per 369 Order, # 5 Exhibit E UNSEALED per 369 Order, # 6 Exhibit F, # 7 Exhibit G UNSEALED per 369 Order, # 8 Exhibit H)(Levin-Gesundheit, Michael) Modified on 3/2/2018 to unseal exhibits (PM). (Entered: 10/27/2017)

10/27/2017

230 SEALED DOCUMENT Expert Report of Dr. Henry S. Farber by Plaintiffs Katherine Moussouris, Holly Muenchow re 227 MOTION to Seal , 228 SEALED MOTION to Certify Class; re 227 MOTION to Seal ; (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017

231 SEALED DOCUMENT Expert Report of Dr. Ann Marie Ryan by Plaintiffs Katherine Moussouris, Holly Muenchow re 227 MOTION to Seal , 228 SEALED MOTION to Certify Class; re 227 MOTION to Seal ; (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017

232 REDACTED MOTION to Certify Class , filed by Plaintiffs Katherine Moussouris, Holly Muenchow. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 2/9/2018, (LevinGesundheit, Michael) Modified on 10/30/2017 to indicate this is a redaction of Dkt. # 228 (PM). (Entered: 10/27/2017)

10/27/2017

233 REDACTED DECLARATION of Anne B. Shaver in Support of Plaintiffs' Motion to Certify Class filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Levin-Gesundheit, Michael) Modified on 10/30/2017 to indicate this is a redaction of Dkt. 229 (PM). (Entered: 10/27/2017)

10/27/2017 234 DECLARATION of Kelly M. Dermody filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify

Class (Attachments: # 1 Exhibit A)(Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017

235 DECLARATION of Adam T. Klein filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017 236 DECLARATION of Michael C. Subit filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017 237 DECLARATION of Amy Alberts filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017

238 DECLARATION of Heidi Boeh filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017 239 DECLARATION of Debra Dove filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017

240 DECLARATION of Olga Hutson filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017 241 DECLARATION of Laura Miller filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017

242 DECLARATION of Katherine Moussouris filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017 243 DECLARATION of Holly Muenchow filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017 244 DECLARATION of Mary Smith filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017

245 DECLARATION of Suzanne Sowinska filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017 246 DECLARATION of Jennifer Underwood filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017 247 DECLARATION of Lanen Vaughn filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/27/2017

248 DECLARATION of Kristen Warren filed by Plaintiffs Katherine Moussouris, Holly Muenchow re 232 MOTION to Certify Class (Levin-Gesundheit, Michael) (Entered: 10/27/2017)

10/30/2017

NOTICE of Docket Text Modification re 233 Declaration, 232 MOTION to Certify Class : edited text to indicate these are redacted documents of Dkt. 228 Motion to Certify Class and Dkt. 229 Declaration of Anne B. Shaver. (PM) (Entered: 10/30/2017)

11/09/2017

249 APPLICATION OF ATTORNEY Tiseme Zegeye FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-5085744 (Lee, Sharon) (Entered: 11/09/2017)

11/09/2017

250 APPLICATION OF ATTORNEY Michelle Lamy FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-5085787 (Lee, Sharon) (Entered: 11/09/2017)

11/09/2017

251 APPLICATION OF ATTORNEY Paul W. Mollica FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-5085798 (Lee, Sharon) (Entered: 11/09/2017)

11/09/2017

252 APPLICATION OF ATTORNEY Pamela Disney FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-5085812 (Lee, Sharon) (Entered: 11/09/2017)

11/09/2017

253 APPLICATION OF ATTORNEY Rachel Bien FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-5085817 (Lee, Sharon) (Entered: 11/09/2017)

11/09/2017

254 ORDER re 249 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Tiseme Zegeye for Plaintiffs Katherine Moussouris, Holly Muenchow and Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/09/2017)

11/09/2017

255 ORDER re 250 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Michelle Lamy for fPlaintiffs Katherine Moussouris, Holly Muenchow, and Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/09/2017)

11/09/2017

256 ORDER re 251 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Paul W Mollica for Plaintiffs Katherine Moussouris, Holly Muenchow and Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/09/2017)

11/09/2017

257 ORDER re 252 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Pamela Disney for Plaintiffs Katherine Moussouris,Pamela Disney for Holly Muenchow,Pamela Disney and Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/09/2017)

11/09/2017

258 ORDER re 253 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Rachel Bien for Plaintiffs Katherine Moussouris, Holly Muenchow and Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/09/2017)

11/09/2017

259 APPLICATION OF ATTORNEY Allison Riechert Giese FOR LEAVE TO APPEAR PRO HAC VICE for Defendant Microsoft Corporation (Fee Paid) Receipt No. 0981-5086478 (Parris, Mark) (Entered: 11/09/2017)

11/09/2017 260 APPLICATION OF ATTORNEY Marc R. Shapiro FOR LEAVE TO APPEAR PRO HAC VICE for Defendant Microsoft Corporation (Fee Paid) Receipt No. 0981-5086505 (Parris, Mark) (Entered: 11/09/2017)

11/09/2017

261 APPLICATION OF ATTORNEY Megan M. Lawson FOR LEAVE TO APPEAR PRO HAC VICE for Defendant Microsoft Corporation (Fee Paid) Receipt No. 0981-5086904 (Parris, Mark) (Entered: 11/09/2017)

11/13/2017

262 ORDER re 259 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Allison Riechert Giese for Defendant Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/13/2017)

11/13/2017 263 APPLICATION OF ATTORNEY Joseph C. Liburt FOR LEAVE TO APPEAR PRO HAC VICE for Defendant Microsoft Corporation (Fee Paid) Receipt No. 0981-5087880 (Parris, Mark) (Entered: 11/13/2017)

11/13/2017

264 ORDER re 260 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Marc R Shapiro for Defendant Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/13/2017)

11/13/2017

265 ORDER re 261 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Megan M. Lawson for Defendant Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/13/2017)

11/13/2017

266 ORDER re 263 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Joseph Liburt for Defendant Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/13/2017)

11/14/2017 267 APPLICATION OF ATTORNEY Jill L. Rosenberg FOR LEAVE TO APPEAR PRO HAC VICE for Defendant Microsoft Corporation (Fee Paid) Receipt No. 0981-5090481 (Parris, Mark) (Entered: 11/14/2017)

11/14/2017

268 ORDER re 267 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Jill L. Rosenberg for Defendant Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 11/14/2017)

11/29/2017 269 RESPONSE, by Defendant Microsoft Corporation, to 227 MOTION to Seal . (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 11/29/2017)

11/29/2017

270 DECLARATION of Joseph Whittinghill filed by Defendant Microsoft Corporation re 227 MOTION to Seal (Parris, Mark) (Entered: 11/29/2017)

11/29/2017 271 DECLARATION of Amy Pannoni filed by Defendant Microsoft Corporation re 227 MOTION to Seal (Parris, Mark) (Entered: 11/29/2017)

11/29/2017

272 DECLARATION of Shinder Dhillon filed by Defendant Microsoft Corporation re 227 MOTION to Seal (Parris, Mark) (Entered: 11/29/2017)

11/29/2017

273 DECLARATION of Lauri A. Damrell filed by Defendant Microsoft Corporation re 227 MOTION to Seal (Attachments: # 1 Exhibit 1.1, # 2 Exhibit 1.2, # 3 Exhibit 1.3, # 4 Exhibit 1.4, # 5 Exhibit 1.5, # 6 Exhibit 1.6, # 7 Exhibit 1.7, # 8 Exhibit 2, # 9 Exhibit 3, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7, # 14 Exhibit 8, # 15 Exhibit 9, # 16 Exhibit 10, # 17 Exhibit 11)(Parris, Mark) (Entered: 11/29/2017)

12/01/2017 274 STIPULATION AND PROPOSED ORDER by parties re 227 MOTION to Seal (Zegeye, Tiseme) (Entered: 12/01/2017)

12/01/2017

275 STIPULATION AND ORDER to RENOTE plaintiffs' 227 MOTION to Seal : Noting Date 12/15/2017; re parties' 274 Stipulation, by Judge James L. Robart. (SWT) (Entered: 12/01/2017)

12/06/2017

276 NOTICE of Withdrawal of Declaration of Laura Miller, Dkt. No. 241 ; filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Zegeye, Tiseme) Modified on 12/7/2017 to add link to Declaration (PM). (Entered: 12/06/2017)

12/08/2017 277 REPLY, filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini, TO RESPONSE to 227 MOTION to Seal (Shaver, Anne) (Entered: 12/08/2017)

12/08/2017

278 DECLARATION of Anne B. Shaver re 277 Reply to Response to 227 Motion to Seal by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Shaver, Anne) Modified on 12/11/2017: edited text to add link to Motion to Seal (PM). (Entered: 12/08/2017)

12/08/2017

279 SEALED DOCUMENT Exhibits to Declaration of Anne Shaver In Support of Reply Re: Motion to Seal by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 227 MOTION to Seal (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit D UNSEALED per 369 Order)(Shaver, Anne) Modified on 3/2/2018 to unseal Exhibit D(PM). (Entered: 12/08/2017)

12/15/2017 280 SURREPLY filed by Defendant Microsoft Corporation re 227 MOTION to Seal (Parris, Mark) (Entered: 12/15/2017)

12/15/2017 281 DECLARATION of Lauri A. Damrell filed by Defendant Microsoft Corporation re 227 MOTION to Seal (Parris, Mark) (Entered: 12/15/2017)

01/03/2018

282 MINUTE ORDER requesting the Special Master assist with the parties' 227 MOTION to Seal; parties may file their objections no later than Friday, January 5, 2018, at 5:00 p.m. Authorized by Judge James L. Robart. (SWT) (Entered: 01/03/2018)

01/05/2018

283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification, filed by Defendant Microsoft Corporation. (Attachments: # 1 Proposed Order Granting Defendant's Motion to Seal) Noting Date 1/19/2018, (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

284 DECLARATION of Lauri Damrell filed by Defendant Microsoft Corporation re 283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification (Parris, Mark) (Entered: 01/05/2018)

01/05/2018 285 RESPONSE, by Defendant Microsoft Corporation, to 232 MOTION to Certify Class . Oral Argument Requested. (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 01/05/2018)

01/05/2018

286 SEALED DOCUMENT Opposition to Plaintiffs' Motion for Class Certification by Defendant Microsoft Corporation re 283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification, 233 Declaration, (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

287 DECLARATION of Mark Parris In Support of Defendant's Opposition to Plaintiffs' Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Attachments: # 1 Exhibit 1 REDACTED, # 2 Exhibit 2 - 8, # 3 Exhibit 9 REDACTED, # 4 Exhibit 10 - 19)(Parris, Mark) (Entered: 01/05/2018)

01/05/2018

288 SEALED DOCUMENT Declaration of Mark S. Parris by Defendant Microsoft Corporation re 283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification, 285 Response to Motion (Attachments: # 1 Exhibit 1 Part 1 SEALED, # 2 Exhibit 1 Part 2 SEALED, # 3 Exhibit 1 Part 3 SEALED, # 4 Exhibit 2 - 8, # 5 Exhibit 9 UNSEALED per 369 Order, # 6 Exhibit 10 - 19)(Parris, Mark) Modified on 3/2/2018 to unseal Exhibit 9 (PM). (Entered: 01/05/2018)

01/05/2018 289 REPORT re 285 Response to Motion EXPERT REPORT OF ALI SAAD, Ph.D. REDACTED by Defendant Microsoft Corporation (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

290 SEALED DOCUMENT EXPERT REPORT OF ALI SAAD, Ph.D. by Defendant Microsoft Corporation re 283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification, 285 Response to Motion (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

291 REPORT re 285 Response to Motion EXPERT REPORT OF RHOMA YOUNG by Defendant Microsoft Corporation (Parris, Mark) (Entered: 01/05/2018)

01/05/2018 292 DECLARATION of Maria Alvarez in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by

Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

293 DECLARATION of Rachel Appel in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

294 DECLARATION of Sarika Calla in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

295 DECLARATION of Kathy DeCaprio in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

296 Redacted DECLARATION of Shinder Dhillon in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Attachments: # 1 Exhibit A - B, # 2 Exhibit C - K)(Parris, Mark) (Entered: 01/05/2018)

01/05/2018

297 SEALED DOCUMENT Declaration of Shinder Dhillon by Defendant Microsoft Corporation re 283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification, 285 Response to Motion (Attachments: # 1 Exhibit A - B, # 2 Exhibit C - F, # 3 Exhibit G - K)(Parris, Mark) (Entered: 01/05/2018)

01/05/2018

298 DECLARATION of Anissa Freshour in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

299 DECLARATION of Karen Easterbrook in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

300 Redacted DECLARATION of Chris Helf in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

301 SEALED DOCUMENT Declaration of Chris Helf by Defendant Microsoft Corporation re 283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification, 285 Response to Motion (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

302 Redacted DECLARATION of Rukmini Iyer in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

303 SEALED DOCUMENT Declaration of Rukmini Iyer by Defendant Microsoft Corporation re 283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification, 285 Response to Motion (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

304 Redacted DECLARATION of Amy M. Jantz in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

305 SEALED DOCUMENT Declaration of Amy M. Jantz by Defendant Microsoft Corporation re 283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification, 285 Response to Motion (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

306 DECLARATION of Olivia Jarvis in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

307 DECLARATION of David Ku in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

308 DECLARATION of Kimberly Kunes in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

309 DECLARATION of Mary Lee in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

310 DECLARATION of Julia Liuson in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

311 DECLARATION of Eric Lockard in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

312 DECLARATION of Ruhiyyih Mahalati in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

313 DECLARATION of JC MAO in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

314 DECLARATION of Farah Shariff in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

315 DECLARATION of Shannon Shepherd in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

316 DECLARATION of Jamie Silvestri in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

317 DECLARATION of Roanne Sones in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

318 DECLARATION of Sadaf Waheed in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018 319 DECLARATION of Catherine Watterson in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by

Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

320 Redacted DECLARATION of Joseph Whittinghill in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

321 SEALED DOCUMENT Declaration of Joseph Whittinghill by Defendant Microsoft Corporation re 283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification, 285 Response to Motion (Parris, Mark) (Entered: 01/05/2018)

01/05/2018

322 DECLARATION of Ian Wilson in Support of Defendant Microsoft's Opposition to Motion for Class Certification filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class (Parris, Mark) (Entered: 01/05/2018)

01/05/2018 323 CERTIFICATE OF SERVICE by Defendant Microsoft Corporation re 285 Response to Motion and Supporting Documents and Declarations (Parris, Mark) (Entered: 01/05/2018)

01/09/2018

324 MINUTE ORDER requesting Special Master to assist with Microsoft's second 283 MOTION to Seal. Objections to request due 1/11/2018 at 5:00 pm. Authorized by Judge James L. Robart. (PM) (Entered: 01/09/2018)

01/10/2018

325 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Lauri A Damrell for Defendant Microsoft Corporation. (Parris, Mark) (Entered: 01/10/2018)

01/19/2018

326 NOTICE of Non-Opposition to Microsoft's Motion to Seal re 283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification ; filed by Defendant Microsoft Corporation. (Parris, Mark) (Entered: 01/19/2018)

01/24/2018

327 APPLICATION OF ATTORNEY Daniel Stromberg FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-5174959 (Lee, Sharon) (Entered: 01/24/2018)

01/24/2018

328 APPLICATION OF ATTORNEY Michael C. Danna FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Fee Paid) Receipt No. 0981-5174972 (Lee, Sharon) (Entered: 01/24/2018)

01/25/2018

329 ORDER re 327 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Daniel Stromberg for Plaintiff Katherine Moussouris, Holly Muenchow and for Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 01/25/2018)

01/25/2018

330 ORDER re 328 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Michael C Danna for Plaintiffs Katherine Moussouris, Holly Muenchow and for Dana Piermarini, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 01/25/2018)

02/08/2018

331 NOTICE of Filing of Corrected Expert Report re 230 Sealed Document, ; filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Exhibit A)(Klein, Adam) (Entered: 02/08/2018)

02/08/2018

332 SEALED DOCUMENT Corrected Expert Report of Dr. Henry S. Farber by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 227 MOTION to Seal , 230 Sealed Document, (Klein, Adam) (Entered: 02/08/2018)

02/09/2018

333 MOTION to Seal Expert Report Errata, filed by Defendant Microsoft Corporation. (Attachments: # 1 Proposed Order Granting Defendant's Motion to Seal Saad Expert Report and Errata) Noting Date 2/23/2018, (Parris, Mark) (Entered: 02/09/2018)

02/09/2018 334 DECLARATION of Marc R. Shapiro filed by Defendant Microsoft Corporation re 333 MOTION to Seal Expert Report Errata (Parris, Mark) (Entered: 02/09/2018)

02/09/2018

335 NOTICE of Filing Corrected Expert Report of Saad and Exhibits in Support of Defendant's Opposition to Plaintiffs' Motion for Class Certification re 289 Report ; filed by Defendant Microsoft Corporation. (Parris, Mark) (Entered: 02/09/2018)

02/09/2018

336 SEALED DOCUMENT Expert Report Errata of Ali Saad, Ph.D. by Defendant Microsoft Corporation re 333 MOTION to Seal Expert Report Errata, 285 Response to Motion (Parris, Mark) (Entered: 02/09/2018)

02/09/2018

337 REDACTED REPORT re 285 Response to Motion --Corrected Expert Report of Dr. Ali Saad Ph.D. Filed in Support of Defendant's Opposition to Plaintiffs' Motion for Class Certification by Defendant Microsoft Corporation (Parris, Mark) Modified on 2/12/2018 to indicate this is a redacted document (PM). (Entered: 02/09/2018)

02/09/2018

338 SEALED DOCUMENT REPORT re 285 Response to Motion -Rhoma Young Expert Report Filed in Support of Defendant's Opposition to Plaintiffs' 228 232 Motion for Class Certification by Defendant Microsoft Corporation (Parris, Mark) Modified on 2/12/2018 to add link to motion (PM). Modified on 2/15/2018 to administratively seal per Counsel's request as it contains confidential information. Counsel to file motion to seal. (TH). (Entered: 02/09/2018)

02/09/2018

339 MOTION to Seal , filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 2/23/2018, (Levin-Gesundheit, Michael) (Entered: 02/09/2018)

02/09/2018

340 SEALED REDACTED REPLY, filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini, TO RESPONSE to 228 SEALED MOTION to Certify Class; re 227 MOTION to Seal ; (Levin-Gesundheit, Michael) Modified on 2/12/2018 to indicate this is a redacted document (PM). Modified on 2/13/2018 to seal per request from counsel. Corrected Redacted Reply to be filed (PM). (Entered: 02/09/2018)

02/09/2018

341 REDACTED DECLARATION of Anne B. Shaver re 340 Reply to Response to 228 Motion to Certify by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 SEALED Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Levin-Gesundheit, Michael) Modified on 2/12/2018 to indicate this is a redacted document (PM). Modified on 2/13/2018 to seal per 339 Motion to Seal and per phone call from counsel(PM). (Entered: 02/09/2018)

02/09/2018

342 SEALED DOCUMENT Reply in Support of Class Certification by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 339 MOTION to Seal , 228 SEALED MOTION to Certify Class;

re 227 MOTION to Seal ; (Levin-Gesundheit, Michael) (Entered: 02/09/2018)

02/09/2018

343 SEALED DOCUMENT Declaration of Anne B. Shaver in Support of Reply re: 228 Class Certification by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 339 MOTION to Seal , 342 Sealed Document, (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit J, # 6 Exhibit K)(LevinGesundheit, Michael) (Entered: 02/09/2018)

02/09/2018

344 SEALED DOCUMENT Expert Rebuttal Report of Henry S. Farber, Ph.D. by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 339 MOTION to Seal , 342 Sealed Document, (LevinGesundheit, Michael) (Entered: 02/09/2018)

02/09/2018

345 SEALED DOCUMENT Reply Expert Report of Ann Marie Ryan, Ph.D. by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 339 MOTION to Seal , 342 Sealed Document, (LevinGesundheit, Michael) (Entered: 02/09/2018)

02/09/2018

346 SEALED DOCUMENT Rebuttal Expert Report of Caren B. Goldberg, Ph.D. by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 339 MOTION to Seal , 342 Sealed Document, (Levin-Gesundheit, Michael) (Entered: 02/09/2018)

02/12/2018

NOTICE of Docket Text Modification re 340 Reply to Response to Motion, 341 Declaration: edted docket text to indicate these are redacted documents. (PM) (Entered: 02/12/2018)

02/12/2018

347 NOTICE of Intent to File Surreply re 340 Reply to Response to Motion, 343 Sealed Document, 345 Sealed Document, 346 Sealed Document, 342 Sealed Document, 341 Declaration (non motion), 344 Sealed Document, ; filed by Defendant Microsoft Corporation. (Parris, Mark) (Entered: 02/12/2018)

02/13/2018

348 REDACTION to 342 Sealed Document, Redacted Reply in Support of Class Certification by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Levin-Gesundheit, Michael) (Entered: 02/13/2018)

02/13/2018

NOTICE of Docket Text Modification re 340 Redacted Reply to Response to Motion, and 341 Attachment 8 (Exhibit H) to Declaration: Documents sealed per phone call from counsel. Corrected Redacted Reply filed as Dkt. # 348 . (PM) (Entered: 02/13/2018)

02/14/2018 349 SURREPLY filed by Defendant Microsoft Corporation re 232 MOTION to Certify Class and Reply Brief (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 02/14/2018)

02/15/2018

350 MINUTE ORDER requesting the Special Master assist with the third and fourth motions to seal (Dkt No. 333 , 339 ); parties may file their objections no later than Monday, February 19, 2018, at noon. Authorized by Judge James L. Robart. (TH) (Entered: 02/15/2018)

02/16/2018

351 REPORT and RECOMMNEDATION re 227 MOTION to Seal , 333 MOTION to Seal Expert Report Errata, 283 MOTION to Seal Documents Submitted in Support of Microsoft's Opposition to Plaintiffs' Motion for Class Certification Report and Recommendation by Special Master Michelle Peterson (Peterson, Michelle) Modified on 2/20/2018 to turn into a motion per direction of chambers. Noting date is 2/27/2018 (PM). (Entered: 02/16/2018)

02/16/2018 352 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Elizabeth V Stork for Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Stork, Elizabeth) (Entered: 02/16/2018)

02/16/2018

353 MOTION to Seal Corrected Saad Expert Report, filed by Defendant Microsoft Corporation. (Attachments: # 1 Proposed Order) Noting Date 3/2/2018, (Parris, Mark) (Entered: 02/16/2018)

02/16/2018

354 SEALED DOCUMENT In Support of Microsoft's Opposition to Motion for Class Certification by Defendant Microsoft Corporation re 353 MOTION to Seal Corrected Saad Expert Report, 232 MOTION to Certify Class (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Parris, Mark) (Entered: 02/16/2018)

02/16/2018

355 NOTICE of Filing Corrected Expert Report in Support of Microsoft Opposition to Motion for Class Certification re 232 MOTION to Certify Class ; filed by Defendant Microsoft Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Parris, Mark) (Entered: 02/16/2018)

02/20/2018

NOTICE of Docket Text Modification re 351 REPORT AND RECOMMENDATION of Special Master: turned into a motion and noted for 2/27/2018, per direction of chambers. (PM) (Entered: 02/20/2018)

02/21/2018 356 NOTICE of Intent to File Surreply ; filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Klein, Adam) (Entered: 02/21/2018)

02/21/2018

357 SURREPLY filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 232 MOTION to Certify Class and Revised Expert Report of Dr. Ali Saad (Klein, Adam) (Entered: 02/21/2018)

02/21/2018 358 RESPONSE, by Defendant Microsoft Corporation, to 339 MOTION to Seal . (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 02/21/2018)

02/21/2018

359 DECLARATION of Marc R. Shapiro filed by Defendant Microsoft Corporation re 339 MOTION to Seal (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Parris, Mark) (Entered: 02/21/2018)

02/21/2018

360 SEALED DOCUMENT Declaration of Marc R. Shapiro by Defendant Microsoft Corporation re 339 MOTION to Seal , 358 Response to Motion (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 12)(Parris, Mark) (Entered: 02/21/2018)

02/23/2018 361 REPLY, filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini, TO RESPONSE to 339 MOTION to Seal (LevinGesundheit, Michael) (Entered: 02/23/2018)

02/23/2018

362 MOTION to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber, PH.D, filed by Defendant Microsoft Corporation. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 3/16/2018, (Parris, Mark) (Entered: 02/23/2018)

02/23/2018

363 DECLARATION of Mark S. Parris filed by Defendant Microsoft Corporation re 362 MOTION to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber, PH.D (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Parris, Mark) (Entered: 02/23/2018)

02/23/2018

364 MOTION to Exclude Defendant's Expert Dr. Ali Saad, filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 3/16/2018, (Klein, Adam) (Entered: 02/23/2018)

02/23/2018

365 DECLARATION of Adam T. Klein filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 364 MOTION to Exclude Defendant's Expert Dr. Ali Saad (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Klein, Adam) (Entered: 02/23/2018)

02/23/2018

366 MOTION to Seal , filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 3/9/2018, (Levin-Gesundheit, Michael) (Entered: 02/23/2018)

02/23/2018

367 SEALED MOTION to Exclude Expert Opinion of Defendant's Expert Rhoma Young; re 366 MOTION to Seal , 338 Report, ; by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 3/16/2018, (Dermody, Kelly) (Entered: 02/23/2018)

02/23/2018

368 REDACTION to 367 SEALED MOTION to Exclude Expert Opinion of Defendant's Expert Rhoma Young; re 366 MOTION to Seal , 338 Report, ; by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Proposed Order)(Dermody, Kelly) (Entered: 02/23/2018)

03/01/2018

369 ORDER ADOPTING REPORT AND RECOMMENDATION 351 in its entirety and GRANTS in part and DENIES in part the three motions to seal (Dkt. ## 227 , 283 , 333 ), as detailed in Ms. Peterson's report and recommendation. The court additionally GRANTS in part and DENIES in part Microsoft's motion to seal the corrected expert report of Dr. Saad (Dkt. # 353 ) on the same grounds as Ms. Peterson articulated in her recommendations regarding Dr. Saad's original export report. The parties and the Clerk are INSTRUCTED to unseal and revise the documents identified by the report and recommendation. The parties are further ORDERED to file revised redacted versions of the motion for class certification and the opposition within ten (10) days of this order. Signed by Judge James L. Robart. (PM) (Entered: 03/02/2018)

03/09/2018

370 RESPONSE, by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini, to 362 MOTION to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber, PH.D. (Klein, Adam) (Entered: 03/09/2018)

03/09/2018

371 DECLARATION of Adam T. Klein filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 362 MOTION to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber, PH.D (Attachments: # 1 Exhibit 1)(Klein, Adam) (Entered: 03/09/2018)

03/09/2018

372 REDACTED RESPONSE, by Defendant Microsoft Corporation, to 364 MOTION to Exclude Defendant's Expert Dr. Ali Saad. Oral Argument Requested. (Parris, Mark) Modified on 3/12/2018 to identify this as redacted (PM). (Entered: 03/09/2018)

03/09/2018 373 DECLARATION of Mark S. Parris filed by Defendant Microsoft Corporation re 364 MOTION to Exclude Defendant's Expert Dr. Ali Saad (Attachments: # 1 Exhibit A)(Parris, Mark) (Entered: 03/09/2018)

03/09/2018

374 DECLARATION of Ali Saad filed by Defendant Microsoft Corporation re 364 MOTION to Exclude Defendant's Expert Dr. Ali Saad (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Parris, Mark) (Entered: 03/09/2018)

03/09/2018

375 MOTION to Seal Opposition to Motion to Exclude Certain Opinions of Defendant's Expert Ali Saad, filed by Defendant Microsoft Corporation. (Attachments: # 1 Proposed Order) Noting Date 3/23/2018, (Parris, Mark) (Entered: 03/09/2018)

03/09/2018

376 SEALED DOCUMENT Opposition to Motion to Exclude Certain Opinions of Defendant's Expert Ali Saad by Defendant Microsoft Corporation re 375 MOTION to Seal Opposition to Motion to Exclude Certain Opinions of Defendant's Expert Ali Saad, 364 MOTION to Exclude Defendant's Expert Dr. Ali Saad (Parris, Mark) (Entered: 03/09/2018)

03/09/2018

377 RESPONSE, by Defendant Microsoft Corporation, to 367 SEALED MOTION to Exclude Expert Opinion of Defendant's Expert Rhoma Young; re 366 MOTION to Seal , 338 Report, ;. Oral Argument Requested. (Parris, Mark) (Entered: 03/09/2018)

03/12/2018 378 EXHIBIT B to Joseph Whittinghill Declaration re 320 Declaration by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018

379 EXHIBIT 7 to Declaration of Lauri A. Damrell, Filed on Plaintiffs' Behalf re 273 Declaration, by Defendant Microsoft Corporation (Parris, Mark) Modified on 3/13/2018 (ELS). (Entered: 03/12/2018)

03/12/2018 380 REDACTION to 230 Sealed Document, Expert Report of Henry Farber - Filed on Plaintiffs' Behalf by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018 381 REDACTION to 232 MOTION to Certify Class Filed on Plaintiffs' Behalf by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018

382 REDACTION to 273 Declaration, Exhibit 4 to Declaration of Lauri A. Damrell, Filed on Plaintiffs' Behalf by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018 383 REDACTION to 273 Declaration, Exhibit 6 to Declaration of Lauri A. Damrell, Filed on Plaintiffs' Behalf by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018 384 REDACTION to 332 Sealed Document Expert Report of Dr. Henry Farber Errata, Filed on Plaintiffs' Behalf by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018

385 REDACTION to 355 Notice-Other, Exhibit A to Notice of Corrected Expert Report by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018 386 REDACTION to 355 Notice-Other, Exhibit B to Notice of Corrected Expert Report by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018 387 REDACTION to 296 Declaration, Declaration of Shinder Dhillon by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018 388 REDACTION to 285 Response to Motion Opposition to Motion for Class Certification by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018 389 REDACTION to 289 Report Expert Report of Dr. Ali Saad by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018 390 REDACTION to 337 Report, Expert Report of Dr. Ali Saad Errata by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/12/2018

391 REDACTION to 233 Declaration, Exhibit A to First Shaver Declaration, Filed on Plaintiffs' Behalf by Defendant Microsoft Corporation (Attachments: # 1 Exhibit 1.2, # 2 Exhibit 1.3, # 3 Exhibit 1.4, # 4 Exhibit 1.5, # 5 Exhibit 1.6)(Parris, Mark) (Entered: 03/12/2018)

03/12/2018 392 DECLARATION of Mark S. Parris re 369 Order on Report and Recommendation,,, by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/12/2018)

03/14/2018 393 MOTION to Seal Corrected Young Expert Report, filed by Defendant Microsoft Corporation. (Attachments: # 1 Proposed Order) Noting Date 3/23/2018, (Parris, Mark) (Entered: 03/14/2018)

03/14/2018 394 REPORT re 393 MOTION to Seal Corrected Young Expert Report by Defendant Microsoft Corporation (Parris, Mark) (Entered: 03/14/2018)

03/14/2018 395 SEALED DOCUMENT Rhoma Young Expert Report by Defendant Microsoft Corporation re 393 MOTION to Seal Corrected Young Expert Report (Parris, Mark) (Entered: 03/14/2018)

03/14/2018 396 DECLARATION of Marc R. Shapiro filed by Defendant Microsoft Corporation re 393 MOTION to Seal Corrected Young Expert Report (Parris, Mark) (Entered: 03/14/2018)

03/15/2018

397 REPLY, filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini, TO RESPONSE to 367 SEALED MOTION to Exclude Expert Opinion of Defendant's Expert Rhoma Young; re 366 MOTION to Seal , 338 Report, ; (Dermody, Kelly) (Entered: 03/15/2018)

03/15/2018

398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, filed by Defendant Microsoft Corporation. (Attachments: # 1 Proposed Order) Noting Date 3/23/2018, (Parris, Mark) (Entered: 03/15/2018)

03/15/2018 399 DECLARATION of Marc R. Shapiro filed by Defendant Microsoft Corporation re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment (Parris, Mark) (Entered: 03/15/2018)

03/15/2018

400 MOTION for Summary Judgment (Redacted Version), filed by Defendant Microsoft Corporation. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 4/6/2018, (Parris, Mark) Modified docket text on 3/16/2018 (SWT). (Entered: 03/15/2018)

03/15/2018

401 DECLARATION of Carolyn Lee (Redacted Version) filed by Defendant Microsoft Corporation re 400 MOTION for Summary Judgment (Parris, Mark) Modified docket text on 3/16/2018 (SWT). (Entered: 03/15/2018)

03/15/2018

402 DECLARATION of Mark S. Parris filed by Defendant Microsoft Corporation re 400 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1.1, # 2 Exhibit 1.2, # 3 Exhibit 1.3, # 4 Exhibit 1.4, # 5 Exhibit 1.5, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10, # 15 Exhibit 11, # 16 Exhibit 12, # 17 Exhibit 13, # 18 Exhibit 14)(Parris, Mark) (Entered: 03/15/2018)

03/15/2018

403 SEALED DOCUMENT Motion for Summary Judgment by Defendant Microsoft Corporation re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment (Parris, Mark) (Entered: 03/15/2018)

03/15/2018

404 SEALED DOCUMENT Declaration of Carolyn Lee by Defendant Microsoft Corporation re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, 401 Declaration (Parris, Mark) (Entered: 03/15/2018)

03/15/2018

405 SEALED DOCUMENT Exhibit 1 to Parris Declaration by Defendant Microsoft Corporation re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, 402 Declaration, (Attachments: # 1 Exhibit 1.2, # 2 Exhibit 1.3, # 3 Exhibit 1.4, # 4 Exhibit 1.5)(Parris, Mark) (Entered: 03/15/2018)

03/15/2018

406 SEALED DOCUMENT Exhibit 5 to Parris Declaration by Defendant Microsoft Corporation re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, 402 Declaration, (Parris, Mark) (Entered: 03/15/2018)

03/15/2018

407 SEALED DOCUMENT Exhibit 6 to Parris Declaration by Defendant Microsoft Corporation re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, 402 Declaration, (Parris, Mark) (Entered: 03/15/2018)

03/15/2018

408 SEALED DOCUMENT Exhibit 7 to Parris Declaration by Defendant Microsoft Corporation re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, 402 Declaration, (Parris, Mark) (Entered: 03/15/2018)

03/15/2018

409 SEALED DOCUMENT Exhibit 8 to Parris Declaration by Defendant Microsoft Corporation re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, 402 Declaration, (Parris, Mark) (Entered: 03/15/2018)

03/15/2018

410 SEALED DOCUMENT Exhibit 10 to Parris Declaration by Defendant Microsoft Corporation re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, 402 Declaration, (Parris, Mark) (Entered: 03/15/2018)

03/16/2018

411 SEALED DOCUMENT Exhibit 11 to Parris Declaration by Defendant Microsoft Corporation re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, 402 Declaration, (Parris, Mark) (Entered: 03/16/2018)

03/16/2018

412 SEALED DOCUMENT Exhibit 12 to Parris Declaration by Defendant Microsoft Corporation re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, 402 Declaration, (Parris, Mark) (Entered: 03/16/2018)

03/16/2018 413 REPLY BRIEF re 364 MOTION to Exclude Defendant's Expert Dr. Ali Saad by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Klein, Adam) (Entered: 03/16/2018)

03/16/2018

414 Amended MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, filed by Defendant Microsoft Corporation. (Attachments: # 1 Proposed Order) Noting Date 3/23/2018, (Parris, Mark) (Entered: 03/16/2018)

03/16/2018

415 Amended DECLARATION of Marc R. Shapiro filed by Defendant Microsoft Corporation re 414 Amended MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment (Parris, Mark) (Entered: 03/16/2018)

03/16/2018

416 Supplemental DECLARATION of Adam T. Klein filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 364 MOTION to Exclude Defendant's Expert Dr. Ali Saad (Attachments: # 1 Exhibit 1)(Klein, Adam) (Entered: 03/16/2018)

03/16/2018

417 DECLARATION of Henry S. Farber, Ph. D. filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 364 MOTION to Exclude Defendant's Expert Dr. Ali Saad (Klein, Adam) (Entered: 03/16/2018)

03/16/2018 418 Redacted MOTION for Summary Judgment , filed by Defendant Microsoft Corporation. Oral Argument Requested. Noting Date 4/6/2018, (Parris, Mark) (Entered: 03/16/2018)

03/16/2018

419 REPLY, filed by Defendant Microsoft Corporation, TO RESPONSE to 362 MOTION to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber, PH.D (Attachments: # (1) Proposed Order)(Parris, Mark) Modified on 3/19/2018 - disregard proposed order; attached in error. (PM). (Entered: 03/16/2018)

03/16/2018

420 DECLARATION of Mark S. Parris filed by Defendant Microsoft Corporation re 362 MOTION to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber, PH.D (Attachments: # 1 Exhibit A)(Parris, Mark) (Entered: 03/16/2018)

03/16/2018

421 MOTION to Seal Reply in Support of Motion to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber, filed by Defendant Microsoft Corporation. (Attachments: # 1 Proposed Order) Noting Date 3/30/2018, (Parris, Mark) (Entered: 03/16/2018)

03/16/2018 422 SEALED DOCUMENT Exhibit A to Parris Declaration in Support of Reply in Support of Motion to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber by Defendant Microsoft Corporation

re 421 MOTION to Seal Reply in Support of Motion to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber, 420 Declaration (Parris, Mark) (Entered: 03/16/2018)

03/19/2018

NOTICE of Docket Text Modification re 419 Reply to Response to Motion : disregard attached proposed order; filed in error; re-filed as attachment to Dkt. 421 , per phone call from counsel. (PM) (Entered: 03/19/2018)

03/19/2018

423 MINUTE ORDER requesting the Special Master assist with five motions to seal: 366 , 375 , 393 , 414 , 421 . Parties may file objections no later than 3/21/2018. Authorized by Judge James L. Robart. (PM) (Entered: 03/19/2018)

03/19/2018

***Motion terminated per direction of chambers: 400 MOTION for Summary Judgment (Redacted Version), filed by Microsoft Corporation. Dkt. # 418 Redacted Motion for Summary Judgment replaces Dkt. 400 . (PM) (Entered: 03/19/2018)

03/21/2018

424 NOTICE of Intent to File Surreply re 362 MOTION to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber, PH.D ; filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Lee, Sharon) (Entered: 03/21/2018)

03/21/2018

425 SURREPLY filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 362 MOTION to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber, PH.D (Lee, Sharon) (Entered: 03/21/2018)

03/21/2018

426 DECLARATION of Adam T. Klein in Support of Plaintiffs' Local Rule 7(G) Surreply filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 362 MOTION to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber, PH.D (Attachments: # 1 Exhibit A)(Klein, Adam) (Entered: 03/21/2018)

03/21/2018

427 SEALED DOCUMENT Response to Microsoft's Motion to Seal (filed under seal version) by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 366 MOTION to Seal , re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Lee, Sharon) Modified on 3/22/2018 (PS). (Entered: 03/21/2018)

03/21/2018 428 REDACTION to 427 Sealed Document, Response to Microsoft's Motion to Seal (redacted, publicly-filed version) by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments:

# 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Lee, Sharon) (Entered: 03/21/2018)

03/22/2018

NOTICE of Docket Text Modification re 427 Sealed Document, : Per counsel request, amended text to correctly indicate docket relationship only to 398 Motion to Seal. (PS) (Entered: 03/22/2018)

03/23/2018 429 REPLY, filed by Defendant Microsoft Corporation, TO RESPONSE to 414 Amended MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment (Parris, Mark) (Entered: 03/23/2018)

03/23/2018

430 DECLARATION of Jacinda Chislum filed by Defendant Microsoft Corporation re 414 Amended MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment (Parris, Mark) (Entered: 03/23/2018)

03/23/2018

431 DECLARATION of Bryna McCool filed by Defendant Microsoft Corporation re 414 Amended MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment (Parris, Mark) (Entered: 03/23/2018)

03/23/2018

432 DECLARATION of Noah Sandidge filed by Defendant Microsoft Corporation re 414 Amended MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment (Parris, Mark) (Entered: 03/23/2018)

03/26/2018

NOTICE of Docket Text Modification re 428 Redacted Document, : Clerk administratively sealed main document; corrected and fully redacted version will be filed by counsel. (PS) (Entered: 03/26/2018)

03/26/2018

433 REDACTION to 427 Sealed Document, Response to Microsoft's Motion to Seal (Dkts. 398 , 414 ) (redacted, publicly-filed version) by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Lee, Sharon) Modified on 3/27/2018 to add docket relationship to 398 , 414 (PM). (Entered: 03/26/2018)

04/02/2018

434 NOTICE of Supplemental Authority re 228 SEALED MOTION to Certify Class; re 227 MOTION to Seal ; by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Shaver, Anne) (Entered: 04/02/2018)

04/02/2018

435 MOTION to Seal , filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Proposed Order) Noting Date 4/13/2018, (Levin-Gesundheit, Michael) (Entered: 04/02/2018)

04/02/2018

436 SEALED DOCUMENT Plaintiffs' Opposition to Microsoft's Motion for Summary Judgment by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 435 MOTION to Seal , 400 MOTION for Summary Judgment (Redacted Version), (Levin-Gesundheit, Michael) (Entered: 04/02/2018)

04/02/2018

437 SEALED DOCUMENT Declaration of Michelle Lamy ISO Plaintiffs' Opposition to Microsoft's Motion for Summary Judgment by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 435 MOTION to Seal , 436 Sealed Document, (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(LevinGesundheit, Michael) (Entered: 04/02/2018)

04/02/2018

438 SEALED DOCUMENT Rebuttal Report of Hank Farber, Ph.D., Re Sales Profession by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 435 MOTION to Seal , 437 Sealed Document, (Levin-Gesundheit, Michael) (Entered: 04/02/2018)

04/02/2018

439 SEALED DOCUMENT Declaration of Adam Klein ISO Plaintiffs' Opposition to Microsoft's Motion for Summary Judgment by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 435 MOTION to Seal , 436 Sealed Document, (Levin-Gesundheit, Michael) (Entered: 04/02/2018)

04/02/2018

440 SEALED DOCUMENT Declaration of Ruth Gilgenbach, Ph.D., ISO Plaintiffs' Opposition to Microsoft's Motion for Summary Judgment by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 435 MOTION to Seal , 436 Sealed Document, (Levin-Gesundheit, Michael) (Entered: 04/02/2018)

04/02/2018

441 SEALED DOCUMENT REDACTION to 436 Sealed Document, Plaintiffs' Opposition to Microsoft's Motion for Summary Judgment by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Levin-Gesundheit, Michael) Modified on 4/3/2018 to seal-per counsel, wrong version was filed. Proper version filed as dkt. entry 446 (ELS). (Entered: 04/03/2018)

04/03/2018

442 REDACTION to 437 Sealed Document, Declaration of Michelle Lamy ISO Plaintiffs' Opposition to Microsoft's 400 Motion for Summary Judgment by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Levin-Gesundheit, Michael) Modified on 4/4/2018 to add docket relationship to 400 , motion for s/j (PM). (Entered: 04/03/2018)

04/03/2018

443 REDACTION to 439 Sealed Document, Declaration of Adam Klein ISO Plaintiffs' Opposition to Microsoft's 400 Motion for Summary Judgment by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Levin-Gesundheit, Michael) Modified on 4/4/2018 to add docket relationship to 400 , motion for s/j (PM). (Entered: 04/03/2018)

04/03/2018

444 REDACTION to 438 Sealed Document, Rebuttal Report of Hank Farber, Ph.D., Re Sales Profession by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Levin-Gesundheit, Michael) (Entered: 04/03/2018)

04/03/2018

445 Per Counsel, document sealed. Correct redacted version re-filed. See Document # 448 . SEALED DOCUMENT REDACTION to 440 Sealed Document, Declaration of Ruth Gilgenbach, Ph.D., ISO Plaintiffs' Opposition to 400 Microsoft's Motion for Summary Judgment by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Levin-Gesundheit, Michael) Modified on 4/3/2018 (vb). Modified on 4/4/2018 to add docket relationship to 400 , mtn for s/j (PM). (Entered: 04/03/2018)

04/03/2018

446 SEALED DOCUMENT REDACTION to 441 Redacted Document Plaintiffs' Opposition to Motion for Summary Judgment (Replacement for ECF No. 441 & Redaction to ECF No. 436) by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Levin-Gesundheit, Michael) Modified on 4/3/2018 (PS). (Entered: 04/03/2018)

04/03/2018

NOTICE of Docket Text Modification re 441 Redacted Document: document has been sealed, correct version refiled as 446 Redaction. (ELS) (Entered: 04/03/2018)

04/03/2018

447 REDACTION to 436 Sealed Document, Plaintiffs' Opposition to Microsoft's 400 Motion for Summary Judgment (Replacement for ECF Nos.441, 446 & Redaction to ECF No. 436) by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Levin-Gesundheit, Michael) Modified on 4/4/2018: to add docket relationship to 400 , mtn for s/j. (PM) (Entered: 04/03/2018)

04/03/2018

NOTICE of Docket Text Modification re 446 Redacted Document, : NOTICE of Docket Text Modification re 446 Redacted Document: document has been sealed, correct version refiled as 447 Redaction (PS) (Entered: 04/03/2018)

04/03/2018

448 REDACTION to 440 Sealed Document, Declaration of Ruth Gilgenbach, Ph.D., ISO Plaintiffs' Opposition to 400 Microsoft's Motion for Summary Judgment (Replacement for ECF No. 445 . by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini

(Levin-Gesundheit, Michael) Modified on 4/4/2018: to add docket relationship to 400 , mtn for s/j. (PM). (Entered: 04/03/2018)

04/03/2018

NOTICE of Docket Text Modification re 445 Redacted Document, : Per Counsel, document sealed. Correct redacted version re-filed. See Document # 448 . (vb) (Entered: 04/03/2018)

04/03/2018

449 MINUTE ORDER requesting that the Special Master assist with Plaintiffs' additional 435 MOTION to Seal. Objections to be filed no later than Friday, April 6, 2018, by noon. Authorized by Judge James L. Robart. (PM) (Entered: 04/04/2018)

04/06/2018 450 REPLY, filed by Defendant Microsoft Corporation, TO RESPONSE to 418 Redacted MOTION for Summary Judgment (Parris, Mark) (Entered: 04/06/2018)

04/06/2018

451 RESPONSE by Defendant Microsoft Corporation re 438 Sealed Document, Response of Ali Saad, PhD. to Report of Henry S. Farber, PhD. (Parris, Mark) (Entered: 04/06/2018)

04/11/2018 452 RESPONSE, by Defendant Microsoft Corporation, to 435 MOTION to Seal . (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 04/11/2018)

04/11/2018

453 DECLARATION of Marc R. Shapiro filed by Defendant Microsoft Corporation re 435 MOTION to Seal (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 SEALED Exhibit 3.2, # 4 Exhibit 4.2, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7.2, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Parris, Mark) Modified on 4/12/2018 to seal unredacted exhibit (ELS). (Entered: 04/11/2018)

04/11/2018

454 SEALED DOCUMENT Declaration of Marc R. Shapiro Sealed Exhibits by Defendant Microsoft Corporation re 435 MOTION to Seal , 453 Declaration, (Attachments: # 1 Exhibit 3.1, # 2 Exhibit 4.1, # 3 Exhibit 7.1)(Parris, Mark) (Entered: 04/11/2018)

04/11/2018 455 NOTICE of Intent to File Surreply re 450 Reply to Response to Motion ; filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Lee, Sharon) (Entered: 04/11/2018)

04/11/2018

456 SURREPLY filed by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 400 MOTION for Summary Judgment (Redacted Version), (Plaintiffs' Local Rule 7(g) Surreply Seeking to Strike Microsoft's Reliance on Materials Outside the Discovery Record) (Lee, Sharon) (Entered: 04/11/2018)

04/12/2018 457 EXHIBIT 3.2 to Declaration of Marc R. Shapiro re 453 Declaration, by Defendant Microsoft Corporation (Parris, Mark) (Entered: 04/12/2018)

04/13/2018

458 SEALED MOTION to Seek Leave to File Supplemental Rebuttal Report of Henry S. Farber, Ph.D.; re 435 MOTION to Seal , 438 Sealed Document, ; by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini. (Attachments: # 1 Exhibit A, # 2 Proposed Order) Noting Date 4/27/2018, (Lee, Sharon) (Entered: 04/13/2018)

04/13/2018

459 REDACTION to 458 SEALED MOTION to Seek Leave to File Supplemental Rebuttal Report of Henry S. Farber, Ph.D.; re 435 MOTION to Seal , 438 Sealed Document, ; by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Lee, Sharon) (Entered: 04/13/2018)

04/13/2018

460 SEALED DOCUMENT Reply re Motion to Seal by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini re 435 MOTION to Seal (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lee, Sharon) (Entered: 04/13/2018)

04/13/2018

461 REDACTION to 460 Sealed Document Reply re Motion to Seal (ECF No. 435) (Publicly-Filed Brief) by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lee, Sharon) (Entered: 04/13/2018)

04/16/2018

462 REPORT AND RECOMMENDATION ON MOTIONS TO SEAL by Special Master Michelle Peterson re 435 MOTION to Seal , 414 Amended MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment, 366 MOTION to Seal , 393 MOTION to Seal Corrected Young Expert Report, 375 MOTION to Seal Opposition to Motion to Exclude Certain Opinions of Defendant's Expert Ali Saad, 421 MOTION to Seal Reply in Support of Motion to Exclude Reports and Opinion of Plaintiffs' Expert Henry S. Farber Report and Recommendation (Peterson, Michelle) Modified on 4/17/2018 to turn into an R&R, noted for 4/16/2018 per direction of chambers (PM). (Entered: 04/16/2018)

04/17/2018

Noting Date Set/Reset re 462 REPORT AND RECOMMENDATION by Special Master. Noting Date is 4/26/2018, per direction of chambers. (PM) (Entered: 04/17/2018)

04/25/2018

463 REPORT AND RECOMMENDATION ON 339 MOTION TO SEAL by Special Master Michelle Peterson (Attachments: # 1 Exhibit A)(Peterson, Michelle) Modified on 4/25/2018 to turn into a R&R, noted for 5/7/2018, per direction of chambers (PM). (Entered: 04/25/2018)

04/25/2018

Noting Date Set/Reset re 463 REPORT AND RECOMMENDATION by Special Master Michelle Peterson. Noting Date is 5/7/2018, per direction of chambers. (PM) (Entered: 04/25/2018)

04/25/2018

464 RESPONSE, by Defendant Microsoft Corporation, to 458 SEALED MOTION to Seek Leave to File Supplemental Rebuttal Report of Henry S. Farber, Ph.D.; re 435 MOTION to Seal , 438 Sealed Document, ;. (Parris, Mark) (Entered: 04/25/2018)

04/25/2018

465 RESPONSE by Defendant Microsoft Corporation Response of Ali Saad, Ph.D. Regarding Supplemental Rebuttal Report of Henry S. Farber, Ph.D. (Parris, Mark) (Entered: 04/25/2018)

04/25/2018

466 DECLARATION of Marc R. Shapiro filed by Defendant Microsoft Corporation re 458 SEALED MOTION to Seek Leave to File Supplemental Rebuttal Report of Henry S. Farber, Ph.D.; re 435 MOTION to Seal , 438 Sealed Document, ; (Parris, Mark) (Entered: 04/25/2018)

04/25/2018

467 PROVISIONALLY SEALED ORDER on Motions to Exclude; denying Defendant Microsoft's 362 MOTION to Exclude Dr. Farber's Expert Opinions; granting in part and denying in part Plaintiffs' 364 MOTION to Exclude Dr. Saad's Expert Opinions; granting Plaintiffs' 367 SEALED MOTION to Exclude Ms. Young's Expert Opinions. The court ORDERS counsel to meet and confer regarding the need for redaction and to jointly file a statement on the docket within ten (10) days of the date of this order to indicate any such need. Signed by Judge James L. Robart. (SWT) (cc: All counsel via email) Modified on 4/26/2018 to indicate this order is provisionally under seal (PM). Modified to UNSEAL per 472 Minute Order on 5/7/2018 (SWT). (Entered: 04/26/2018)

04/26/2018

468 REPORT re 462 REPORT AND RECOMMENDATIONS SUPPLEMENTAL by Special Master Michelle Peterson (Peterson, Michelle) Modified on 5/3/2018 to turn into a motion per direction of chambers (PM). (Entered: 04/26/2018)

04/29/2018

469 ORDER ADOPTING REPORT AND RECOMMENDATION 462 filed by Special Master Michelle Peterson. The court directs parties to jointly submit within 10 days of the entry of this order, a stipulated reference sheet that details-by title and docket number-the documents that the parties rely on for the Motion for Class Certification (Dkt. ## 228 (sealed), 232 (redacted)) and the Motion for Summary Judgment (Dkt. # 418 ). Signed by Judge James L. Robart. (PM) (Entered: 04/30/2018)

04/30/2018

Set Oral Argument on Plaintiffs' SEALED MOTION to Certify Class (Dkt. # 228 ): Motion Hearing set for Monday, 6/11/2018 at 2:30 PM in Courtroom 14106 before Judge James L. Robart. (AD) (Entered: 04/30/2018)

05/03/2018

Noting Date Set re 468 Supplemental Report and Recommendation by Special Master Michelle Peterson. Noting Date is 5/1/2018. (PM) (Entered: 05/03/2018)

05/03/2018

470 ORDER adopting the 468 supplemental report and recommendation in its entirety. The parties are INSTRUCTED to unseal and revise, as necessary, the redactions on any documents identified by the supplemental report and recommendation as well as the original report and recommendation. Signed by Judge James L. Robart. (PM) (Entered: 05/03/2018)

05/04/2018

471 STATEMENT re 467 Sealed Order,,,, Terminate Motions,,, Joint Statement Regarding Redactions to Order on Motions to Exclude Experts (ECF No. 467) by Plaintiffs Katherine Moussouris, Holly Muenchow, Dana Piermarini (Levin-Gesundheit, Michael) (Entered: 05/04/2018)

05/07/2018 472 MINUTE ORDER directing Clerk to unseal Court's 467 Provisionally Sealed Order on Motions to Exclude. Authorized by Judge James L. Robart. (SWT) (Entered: 05/07/2018)

05/07/2018 473 NOTICE of Filing of Corrected Opposition to Class Certification ; filed by Defendant Microsoft Corporation. (Parris, Mark) (Entered: 05/07/2018)

05/07/2018 474 RESPONSE, by Defendant Microsoft Corporation, to 232 MOTION to Certify Class . Oral Argument Requested. (Parris, Mark) (Entered: 05/07/2018)

05/07/2018

475 PROPOSED ORDER (Unsigned) re 398 MOTION to Seal Documents Submitted in Support of Motion for Summary Judgment (Revised) (Parris, Mark) (Entered: 05/07/2018)

05/07/2018 476 REDACTION to 436 Sealed Document, Opposition to Motion for Summary Judgment, filed on behalf of Plaintiffs by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018

477 REDACTION to 437 Sealed Document, Exhibit A to Lamy Declaration, filed on behalf of Plaintiffs by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018 478 REDACTION to 437 Sealed Document, Exhibit B to Lamy Declaration, filed on behalf of Plaintiffs by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018 479 REDACTION to 437 Sealed Document, Exhibit C to Lamy Declaration, filed on behalf of Plaintiffs by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018

480 REDACTION to 437 Sealed Document, Exhibit D to Lamy Declaration, filed on behalf of Plaintiffs by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018 481 REDACTION to 437 Sealed Document, Exhibit E to Lamy Declaration, filed on behalf of Plaintiffs by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018

482 REDACTION to 437 Sealed Document, Exhibit F to Lamy Declaration, filed on behalf of Plaintiffs by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018 483 REDACTION to 437 Sealed Document, Exhibit H to Lamy Declaration, filed on behalf of Plaintiffs by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018 484 REDACTION to 440 Sealed Document, Declaration of Ruth Gilgenbach, PhD., filed on behalf of Plaintiffs by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018 485 REDACTION to 405 Sealed Document, Exhibit 1 to Parris Declaration by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018 486 REDACTION to 410 Sealed Document, Exhibit 10 to Parris Declaration by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018

487 REDACTION to 411 Sealed Document, Exhibit 11 to Parris Declaration by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018 488 REDACTION to 412 Sealed Document, Exhibit 12 to Parris Declaration by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/07/2018

489 REDACTION to 403 Sealed Document Motion for Summary Judgment by Defendant Microsoft Corporation (Parris, Mark) (Entered: 05/07/2018)

05/08/2018

490 ORDER ADOPTING REPORT AND RECOMMENDATION 463 filed by Special Master Michelle Peterson. The court INSTRUCTS the parties to unseal and revise, as necessary, the redactions on the documents identified by the report and recommendation within ten (10) days of the entry of this order. Signed by Judge James L. Robart. (PM) (Entered: 05/08/2018)

05/08/2018

491 REPORT on Proposed Order Dkt. # 475 by Special Master Michelle Peterson (Swendt, Kerry) Modified to create docket entry relationship on 5/9/2018 (SWT). Modified to convert to motion per direction from chambers on 5/16/2018 (SWT). (Entered: 05/08/2018)

05/08/2018

Noting Date Set re 491 REPORT on Proposed Order Dkt. # 475 by Special Master Michelle Peterson : Noting Date 5/18/2018, per direction from chambers (SWT) (Entered: 05/16/2018)

05/10/2018

492 NOTICE Stipulated Reference Sheet of Materials Supporting Class Certification and Summary Judgment Motions re 403 Sealed Document, 228 SEALED MOTION to Certify Class; re 227 MOTION to Seal ; ; filed by Defendant Microsoft Corporation. (Parris, Mark) (Entered: 05/10/2018)

05/10/2018 493 NOTICE of Supplemental Authority re 474 Response to Motion by Defendant Microsoft Corporation (Attachments: # 1 Citation)(Parris, Mark) (Entered: 05/10/2018)

05/17/2018 494 ORDER granting Plaintiffs' 458 Sealed Motion for Leave to File Supplemental Rebuttal Report. Signed by Judge James L. Robart. (TH) (Entered: 05/17/2018)

05/22/2018

495 ORDER ADOPTING 491 REPORT AND RECOMMENDATION. The court INSTRUCTS the parties to unseal and revise, as necessary, the redactions on the documents identified by the report and recommendation within ten (10) days of the entry of this order. Signed by Judge James L. Robart. (TH) (Entered: 05/22/2018)

06/01/2018

496 REDACTION to 406 Sealed Document, Exhibit 5 to Parris Declaration re Motion to Seal Documents Submitted in Support of Motion for Summary Judgment by Defendant Microsoft Corporation (Parris, Mark) (Entered: 06/01/2018)

06/01/2018

497 REDACTION to 407 Sealed Document, Exhibit 6 to Parris Declaration re Motion to Seal Documents Submitted in Support of Motion for Summary Judgment by Defendant Microsoft Corporation (Parris, Mark) (Entered: 06/01/2018)

06/01/2018

498 REDACTION to 408 Sealed Document, Exhibit 7 to Parris Declaration re Motion to Seal Documents Submitted in Support of Motion for Summary Judgment, by Defendant Microsoft Corporation (Parris, Mark) (Entered: 06/01/2018)

06/04/2018

Reset Oral Argument on Plaintiffs' SEALED MOTION to Certify Class (Dkt. # 228 ). Motion Hearing set for 6/11/2018 will be held at 1:00 PM before Judge James L. Robart. (AD) (Entered: 06/04/2018)

06/06/2018 499 NOTICE of Supplemental Authority re 474 Response to Motion by Defendant Microsoft Corporation (Parris, Mark) (Entered: 06/06/2018)

06/10/2018

500 NOTICE of Supplemental Authority re 228 SEALED MOTION to Certify Class; re 227 MOTION to Seal ; by Plaintiffs Katherine Moussouris, Holly Muenchow (Levin-Gesundheit, Michael) (Entered: 06/10/2018)

06/11/2018

501 APPLICATION OF ATTORNEY Kathryn Grzenczyk Mantoan FOR LEAVE TO APPEAR PRO HAC VICE for Defendant Microsoft Corporation (Fee Paid) Receipt No. 0981-5350546 (Parris, Mark) (Entered: 06/11/2018)

06/11/2018

502 ORDER re 501 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Kathryn Grzenczyk Mantoan for Defendant Microsoft Corporation, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 06/11/2018)

06/11/2018

503 MINUTE ENTRY for proceedings held before Judge James L. Robart Dep Clerk: Ashleigh Drecktrah; Pla Counsel: Kelly Dermody, Anne Shaver, Adam Klein, Michael Subit; Def Counsel: Lynne Hermle, Jessica Perry, Katie Mantoan, Marc Shapiro, Mark Parris; CR: Debbie Zurn; Motion Hearing held on 6/11/2018. The court hears from counsel re: Plaintiffs' Motion for Class Certification (Dkt. # 228 ). The court takes the matter under submission. Written order to follow. (AD) (Entered: 06/11/2018)

06/25/2018

504 PROVISIONALLY SEALED ORDER denying Plaintiffs' motion for class certification (Dkt. ## 228 (sealed), 381 (redacted)). The court DIRECTS the Clerk to provisionally file this order under seal and ORDERS the parties to meet and confer regarding the need for redaction. The court further ORDERS the parties to jointly file a statement within ten (10) days of the date of this order to indicate any

need for redaction. Signed by Judge James L. Robart. (PM) Modified on 6/25/2018: copy of order emailed to counsel (PM). (Entered: 06/25/2018)

06/27/2018 505 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 6/11/2018 before Judge James L. Robart.

Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.

Release of Transcript Restriction set for 9/25/2018, (DZ) (Entered: 06/27/2018)

07/05/2018

506 STIPULATION AND PROPOSED ORDER To Seal Order Denying Plaintiffs' Motion for Class Certification by parties re 504 Sealed Order,,, Terminate Motions,, (Attachments: # 1 Proposed Order, # 2 Exhibit A to the Stipulation)(Parris, Mark) (Entered: 07/05/2018)

07/06/2018

507 STIPULATION AND ORDER to Seal Order Denying Plaintiff's Motion for Class Certification (Dkt. No. 504 ) re parties' 506 Stipulation. IT IS HEREBY ORDERED THAT the parties' Stipulation is GRANTED. The Order Denying Plaintiffs' Class Certification (Dkt. No. 504 ) shall remain sealed. Signed by Judge James L. Robart. (TH) (Entered: 07/06/2018)

07/06/2018

508 ORDER Denying Class Certification re Dkts. 381 , 228 , by Judge James L. Robart. (SWT) (Redacted version extracted from Dkt. 506-2) (Entered: 07/06/2018)

07/09/2018

509 NOTICE FROM 9TH CIRCUIT COURT OF APPEALS (18-80080) This is to acknowledge receipt of your Petition for Permission to Appeal under 23(f). All subsequent letters and requests for information regarding this matter will be added to your file to be considered at the same time the cause is brought before the court. The file number and the title of your case should be shown in the upper right corner of your

letter to the clerk's office. All correspondence should be directed to the above address pursuant to Circuit Rule 25-1. (CDA) (Entered: 07/10/2018)

07/11/2018

510 PROVISIONALLY SEALED ORDER granting in part and denying in part Defendant Microsoft's 403 Sealed Motion for Summary Judgment, 489 Redacted Motion for Summary Judgment. Specifically, the court GRANTS judgment to Microsoft on Plaintiff's request for punitive damages under the WLAD. The court DENIES the remainder of the motion. The court DIRECTS the Clerk to provisionally file this order under seal and ORDERS the parties to meet and confer regarding the need for redaction. The court further ORDERS the parties to jointly file a statement within ten (10) days of the date of this order to indicate any need for redaction. Signed by Judge James L. Robart. (PM) cc: order emailed to counsel (Entered: 07/11/2018)

07/23/2018

511 STIPULATION AND PROPOSED ORDER to Seal Order Granting In Part and Denying In Part Defendant's Motion for Summary Judgement by parties re 510 Sealed Order,, (Attachments: # 1 Proposed Order)(Parris, Mark) (Entered: 07/23/2018)

07/23/2018

512 EXHIBIT REDACTED SUMMARY JUDGMENT ORDER re 511 Stipulation re: 510 SEALED Order. by Defendant Microsoft Corporation (Parris, MarkModified on 7/24/2018: edited title of document and added link to 510 Sealed Orde (PM). (Entered: 07/23/2018)

07/24/2018

513 STIPULATION AND ORDER sealing the 510 Order granting in part and denying in part Defendant's motion for summary judgment 403 489 as reflected in the redacted copy of the Order attached to the Parties' Stipulation 512 . Signed by Judge James L. Robart. (PM) (Entered: 07/24/2018)

07/27/2018

514 NOTICE by Ninth Circuit Court of Appeals (18-80080)Petition for Permission to Appeal receipt. (received in USDC on 7/27/18) (SG) (Entered: 07/30/2018)

09/20/2018

515 NOTICE OF APPEAL to Ninth Circuit (18- 35791) by Plaintiff Katherine Moussouris. (order Granting Permission to Appeal-entered for clerical purposes only) (SG) Modified on 9/24/2018 ADD CCA# (SG). (Entered: 09/21/2018)

09/21/2018

Appeal Fees received: fee in the amount of $ 505.00 (receipt # SEA092525) re 515 Notice of Appeal filed by Katherine Moussouris (cc: USCA) (SG) (Entered: 09/21/2018)

09/21/2018 516 TIME SCHEDULE ORDER (18-35791) as to 515 Notice of Appeal filed by Katherine Moussouris (SG) (Entered: 09/24/2018)

02/06/2019

517 ORDER Withdrawing Special Master Appointment. The court intends to withdraw Ms. Peterson's appointment as special master in this case on 2/15/2019. The court ORDERS any party that wishes to respond to the court's plan to file a brief not to exceed three pages no later than 2/11/2019. Signed by Judge James L. Robart. (TH) (Entered: 02/06/2019)

02/22/2019 518 STIPULATION AND PROPOSED ORDER Regarding Voluntary Dismissal of Dana Piermarini's Claims by parties (Miazad, Ossai) (Entered: 02/22/2019)

02/26/2019

519 STIPULATION AND ORDER regarding voluntary dismissal of Dana Piermarini's claims re parties' 518 Stipulation, signed by Judge James L. Robart. (SWT) (Dana Piermarini terminated.) (Entered: 02/26/2019)

02/28/2019 520 ORDER withdrawing Michelle Peterson's appointment as special master in this case. Signed by Judge James L. Robart. (SWT) (Special Master Michelle Peterson terminated) (Entered: 02/28/2019)

03/05/2019 521 ORDER of USCA (18-35791) as to 515 Notice of Appeal filed by Katherine Moussouris (CDA) (Entered: 03/05/2019)

04/23/2019 522 ORDER of USCA (18-35791) as to 515 Notice of Appeal filed by Katherine Moussouris. (GT) (Entered: 04/23/2019)

 
 2016 WL 4472930 Only the Westlaw citation is currently available.
United States District Court, W.D. Washington, at Seattle.
Katherine Moussouris, et al., Plaintiffs, v.
Microsoft Corporation, Defendant.
CASE NO. C15-1483JLR |
Signed 03/07/2016
Attorneys and Law Firms
Adam T. Klein, Cara B. Chomski, Elizabeth V. Stork, Ossai Miazad, Outten & Golden, LLP, Rachel J. Geman, Lieff Cabraser Heimann & Bernstein, New York, NY, Anne B. Shaver, Kelly M. Dermody, Michael LevinGesundheit, Yaman Salahi, Lieff Cabraser Heimann & Bernstein, Katrina L. Eiland, Outten & Golden, LLP, San Francisco, CA, Michael C. Subit, Frank Freed Subit & Thomas, Sharon M. Lee, Lieff, Cabraser, Heimann & Bernstein, LLP, Seattle, WA, for Plaintiffs.
Jessica R. Perry, Lynne C. Hermle, Orrick Herrington & Sutcliffe, Menlo Park, CA, Lauri A. Damrell, Orrick, Herrington & Sutcliffe LLP, Sacramento, CA, Wendy Butler Curtis, Orrick Herrington & Sutcliffe, Washington, DC, Mark Steven Parris, Orrick Herrington & Sutcliffe LLP, Seattle, WA, for Defendant.
ORDER
JAMES I. ROBART, United States District Judge
I. INTRODUCTION
*1 This matter comes before the court on Defendant Microsoft Corporation’s motion to dismiss, strike, and for a more definite statement. (Mot. (Dkt. # 23).) Microsoft argues that Plaintiffs Katherine Moussouris, Holly Muenchow, and Dana Piermarini’s (collectively, “Plaintiffs”) complaint suffers from several flaws. Microsoft asks the court to strike the class definition and

the purportedly improper allegations and dismiss all six claims as insufficiently pled; in the alternative, Microsoft seeks a more definite statement for the same reasons. (See generally Mot.) Plaintiffs filed an opposition to Microsoft’s motion (Resp. (Dkt. # 28)), to which Microsoft replied (Reply (Dkt. # 29)). Having considered the parties’ submissions, the appropriate portions of the record, and the relevant law, and considering itself fully advised,1 the court GRANTS in part and DENIES in part the motion, as described herein.
II. BACKGROUND
This case is a putative class action filed by three current or former Microsoft employees alleging gender-based employment discrimination. (See generally FAC (Dkt. # 8).) Plaintiffs’ claims on behalf of the class are intentional discrimination and disparate impact discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., and the Washington Law Against Discrimination (“WLAD”), RCW 49.60.010, etseq. (FAC ¶¶ 71-100.) Ms. Moussouris and Ms. Piermarini also allege retaliation in violation of Title VII, and Ms. Moussouris adds a claim for retaliation in violation of the WLAD. (Id.¶¶ 101-10.) Ms. Moussouris and Ms. Piermarini bring these retaliation claims on their own behalves, not on behalf of a putative class. (Id.)
Plaintiffs largely fault Microsoft’s employment evaluation system for Microsoft’s alleged gender discrimination. (See id. ¶¶ 25-29, 38(c), 44, 73(a), 81, 88(a), 96.) Under the “stack ranking” system, Microsoft forced its managers to assign a score between 1, which is the best score, and 5, which is the worst score, to each of its employees, with a certain percentage of its employees receiving each score. (Id. ¶ 26.) In other words, even if a manager felt half of her employees deserved the highest score, the system required her to rank a certain number of them 1, a certain number of them 2, etcetera. (Id.) Plaintiffs assert that this system “systematically undervalued female technical employees compared to similarly situated male employees because, among other reasons, it meant that lower ranked employees were inferior and should be paid less and promoted less frequently regardless of their actual contributions to Microsoft.” (Id.)
Microsoft performed this ranking twice each year and used it to determine midyear and end-of-year promotions.2 (Id.) Plaintiffs further allege that Microsoft ceased using this stack ranking system in either 2013 or 2014 but has
1

since then used a “similarly unvalidated, [sic] and unreliable discriminatory performance evaluation procedure that systematically undervalues female technical employees relative to their male peers, and results in lower scores than men in similar positions with no better or worse objective performance.” (Id. ¶ 29; see also id. ¶ 26.)
*2 Ms. Moussouris worked for Microsoft in its Redmond, Washington office from April 2007 to May 30, 2014, at which point she alleges she was forced to resign. (Id.¶¶ 54.) Microsoft initially hired her as a Security Program Manager. (Id. ¶ 44.) On multiple occasions during her tenure, Ms. Moussouris was told she deserved a better score on her performance evaluation but that the forced ranking process caused her score to be less favorable. (See id. ¶¶ 45-46.) Ms. Moussouris also alleges that she was paid less than her male peers and she and other women were passed over for promotions in favor of “less qualified and less experienced men.” (Id. ¶¶ 47-48; see also id. ¶¶ 49-51 (detailing the promotions Ms. Moussouris alleges she deserved but did not receive).)
Furthermore, Ms. Moussouris alleges that the Director of Microsoft’s Trustworthy Computing Group retaliated against her after Ms. Moussouris complained of his sexual harassment. (Id. ¶ 52.) According to Ms. Moussouris, in 2013, Ms. Moussouris’s manager began to reduce her role at Microsoft even though her performance never changed. (Id. ¶ 53.) As a result, she resigned in May 2014. On May 13, 2014, prior to her resignation, Ms. Moussouris filed a formal discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). (See EEOC Charge (Dkt. # 8-1) at 1; FAC ¶ 20 (referencing Ms. Moussouris’s attached EEOC Charge).)3
Ms. Muenchow has worked for Microsoft’s Redmond, Washington office since approximately September 2002. (FAC ¶¶ 8, 55.) Microsoft hired her as a Software Test Engineer and promoted her to Senior I/T Operations Program Manager, a role in which she coordinates product releases to Microsoft clients. (Id. ¶ 55.) Ms. Muenchow has progressed from Level 58 to Level 62 during her tenure at Microsoft, and she has seen male colleagues promoted over her that Ms. Muenchow believes were less qualified. (Id. ¶ 57.) Like Ms. Moussouris, Microsoft subjected Ms. Muenchow to its performance review process. (Id. ¶ 56.) Also like Ms. Moussouris, Ms. Muenchow feels she was paid less than comparable male workers due to Microsoft’s compensation and promotion process. (Id. ¶ 58.) Finally, Ms. Muenchow believes that Microsoft disfavors women who take maternity or medical leave. (Id. ¶ 59.)
Microsoft hired Ms. Piermarini in September 2006 as a

Solutions Analyst in its Sales Division. (Id. ¶¶ 10, 60.) She currently lives in Leesburg, Virginia. (Id. ¶ 9.) During her nine years at Microsoft, she progressed from Level 62 to Level 64, and was once denied a promotion after returning from maternity leave despite a strong performance record. (Id. ¶¶ 62-63.) Instead, Microsoft promoted a “male member of her team” who did not receive top performance evaluations and did not promote Ms. Piermarini until the following year. (Id. ¶¶ 63-64.) Ms. Piermarini believes that Microsoft’s compensation and promotion process favored men over her and that women “progress more slowly and are treated less favorably at Microsoft.” (Id. ¶¶ 65-67.)
In addition, like Ms. Moussouris, Ms. Piermarini reported her manager to Microsoft. (Id. ¶ 69.) Ms. Piermarini believed her manager was treating her less favorably because of her gender by giving her inferior work opportunities and making sexist comments. (Id.) That man remains Ms. Piermarini;s manager, and Ms. Piermarini alleges he has retaliated against her “by soliciting negative and demonstrably false comments about Ms. Piermarini for her 2015 end of the year performance evaluation.” (Id. ¶ 70.)
*3 The court now evaluates Microsoft’s motion.
III. ANALYSIS
A. Legal Standards
1. Motion to Strike under Federal Rule of Civil Procedure 12(f) Federal Rule of Civil Procedure 12(f) provides that the court “may strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “A federal court will not exercise its discretion under Rule 12(f) to strike a pleading unless the matters sought to be omitted have no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party.” Oilier v. Sweetwater Union High Sch. Dist., 735 F. Supp. 2d 1222, 1223-24 (S.D. Cal. 2010) (citing Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004)). Furthermore, “motions to strike are rarely granted in the absence of a showing of prejudice to the moving party.” Freeman v. Alta Bates Summit Med. Ctr. Campus, No. C 04-2019 SBA, 2004 WL 2326369, at *2 (N.D. Cal. Oct. 12,2004) (citing 61 Am. Jur. 2d Pleading § 505 (1999)). This demanding standard leads district courts in the Ninth Circuit to disfavor motions to strike, which are “often used as a delaying tactic.” Cal. Dep’t of Toxic Substances Control
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v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1032-33 (C.D. Cal. 2002); see also Cruz v. Sky Chefs, Inc., No. C-1203705 DMR, 2013 WL 1892337, at *6 (N.D. Cal. 2013) (collecting cases); Hovenkotter v. Safeco Corp., No. C090218JLR, 2009 WL 6698629, at *8-9 (W.D. Wash. Aug. 3, 2009).
2. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court construes the complaint in the light most favorable to the nonmoving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court must accept all well-pled facts as true and draw all reasonable inferences in favor of the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The court, however, need not accept as true a legal conclusion presented as a factual allegation. Id. Finally, dismissal under Rule 12(b)(6) can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
B. Motion to Strike
1. Plaintiffs’ Class Definition Defendants first seek to strike Plaintiffs’ class definition. (Mot. at 3-5.) Plaintiffs respond that “[s]triking or dismissing-class claims at the pleading stage is-only appropriate where ‘the claim could not possibly proceed on a classwide basis,’ which is clearly not the case here.” (Mot. at 3 (quoting Willis v. Enter. Drilling Fluids, Inc., No. 1:15-cv-00688-JLT, 2015 WL 6689637, at *7 (E.D. Cal. Oct. 28, 2015)) (citing Sanders v. Apple Inc., 672 F. Supp. 2d 978, 990 (N.D. Cal. 2009))); see also Cholakyan v. Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220, 1245 (C.D. Cal. 2011) (“While defendant cites several cases for the proposition that class allegations can be stricken at the pleadings stage, it is in fact rare to do so in advance of a motion for class certification.” (internal footnote

omitted)).
*4 The cases upon which Microsoft relies that address a motion to strike class allegations either involve a putative class definition far more facially deficient than the one at issue in this case or address a plaintiff that failed to plead the Rule 23 elements.4 See Doninger v: Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) (“[W]here plaintiffs fail to make even a prima facie showing of Rule 23’s prerequisites, as we find here, the burden is on the plaintiff to demonstrate that discovery measures are likely to produce persuasive information substantiating the class action allegations.”); John v. Natl Sec. Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (affirming the district court’s dismissal of the class allegations on the pleadings because the plaintiff’s did not contend on appeal that their proposed class was ascertainable); Edwards v. Zenimax Media Inc., No. 12-cv-00411-WYD-KLM, 2012 WL 4378219, at *6 (D. Colo. Sept. 25, 2012) (concluding that the plaintiff’s proposed class was “overbroad” and “unascertainable,” and the class thus facially failed to meet Rule 23’s requirements); In re Vioxx Prods. Liab. Litig., No. 09-3713, MDL No. 1657, 2012 WL 2061883, at *5 (E.D. La. June 6, 2012) (striking class allegations where the class was “defined by inherently subjective criteria”); Earnest v. General Motors Corp., 923 F. Supp. 1469, 1473-74 (N.D. Ala. 1996) (striking a class description that included “engines and/or engine control modules ... such as those in the said vehicles of the named Plaintiffs,” because the “proposed class [wa]s so broad, amorphous, and vague that it fails to meet the minimum standard of definiteness”); Peak v. Topeka Hous. Auth., City of Topeka, 78 F.R.D. 78, 83 (D. Kan. 1978) (“[N]othing in the present complaint indicates that plaintiff or her counsel have any idea of the parameters of the proposed class or the direction discovery should take.”). Plaintiffs’ burden is merely to “advance[e] a prima facie showing that the class action requirements of [Rule] 23 are satisfied or that discovery is likely to produce substantiation of the class allegations.” Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985).
Plaintiffs seek to represent a class “of all female technical employees employed by Microsoft in the United States” during certain time periods. (FAC ¶ 35; see also id ¶¶ 3643 (alleging additiona l Rule 23-related facts).) The court finds that this class definition neither facially fails to meet Rule 23’s requirements nor reaches a level of implausibility that merits striking the allegation. In the January 29, 2016, telephone hearing, the court expressed its concerns about the proposed class definition and its ability to withstand Rule 23 scrutiny after the Supreme Court’s decision in Wal-Mart v. Dukes. See 564 U.S. 338 (2011); (Min. Entry (Dkt. # 49).) However, Microsoft makes no showing that Plaintiffs fail to allege facts
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sufficient to support each of Rule 23’s requirements. (See generally Mot.; see also FAC ¶¶ 35-43); Grundmeyer v. Allstate Prop. & Cas. Ins. Co., No. C15-0464RSL, 2015 WL 9487928, at *1 (W.D. Wash. Sept. 29, 2015) (citing Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)) (“The question, therefore, is whether the allegations in the [operative] Complaint state ‘plausible’ grounds for class certification or whether they are so conclusory or formulaic that they should be disregarded.... If the class allegations are legally or factually defective,... dismissal is appropriate.”). In sum, this action is not the type of case in which “the claim could not possibly proceed on a classwide basis,” and the court declines to strike the class allegations. Willis, 2015 WL 6689637, at *7.
Plaintiffs allege that they observed and intuited instances of institutionalized gender discrimination at Microsoft. (See FAC ¶¶ 28, 34, 47-51, 57-59, 62-66.) Plaintiffs deserve the chance to develop the facts surrounding their class definitio n—and if necessary, the class definition itself—through class discovery. Accordingly, the court denies Microsoft’s motion to strike the class definition.
2. Timeliness of Plaintiffs’ Title VII Claims *5 Microsoft also contends that Plaintiffs’ Title VII claims include untimely allegations and moves to strike those claims. (Mot. at 5-6.) Title VII requires an employee to file a charge with the EEOC within a certain period of time-of the offending action. See 42 U.S.C. § 2000e-5(e). If the alleged discrimination occurred in a state with its own anti-discrimination agency and enforcement mechanism, referred to in this context as a “deferral state,” the charge must be filed within 300 days of the underlying, allegedly unlawful employment practice.5 Id. § 2000e-5(e)(1). On the other hand, if the alleged discrimination occurred in a state without its own anti-discrimination agency and enforcement mechanism, referred to as a “non-deferral state,” the complainant has only 180 days from the action to file a charge with the EEOC. Id.
Generally, filing a class action tolls the statute of limitations for all putative class members until class certification is adjudicated. Crown, Cork, & Seal Co. v. Parker, 462 U.S. 345, 352-54 (1983) (“Rule 23 both permits and encourages class members to rely on the named plaintiffs to press their claims.”). In the employment discrimination context, this rule allows a putative class representative to “represent all class members whose claims were not already time-barred at the time he filed his [EEOC] charge, irrespective of whether the class members had filed charges of their

own.”6 Domingo v. New England Fish Co., 727 F.2d 1429, 1442 (9th Cir. 1984).
Microsoft acknowledges this law and that Ms. Moussouris filed her EEOC charge on May 12, 2014. (Mot. at 5 (citing FAC ¶ 20).) However, Microsoft contends that because the putative class is nationwide, the 300-day limitation period does not apply to all individuals. (Mot. at 5.) Instead, for putative class members in non-deferral states, Microsoft argues that a 180-day limitation period applies. (Id.) In other words, Microsoft argues that claims in non-deferral states are timely if filed 180-or-fewer days before Ms. Moussouris filed her EEOC charge, whereas claims in deferral states are timely if filed 300-or-fewer days before that date. (Id.) That interpretation would require the court to bifurcate its application of the statute of limitations depending on the employee’s state of residence. According to Microsoft, class members working in non-deferral states could have valid claims beginning on November 15, 2013, whereas class members working in deferral states could have valid claims beginning on July 18, 2013. (Id.) Microsoft accordingly seeks to strike the claims of class members in nondeferral states occurring before November 15, 2013. (Id.; see also FAC ¶ 35.)
The parties’ dispute boils down to a question of law: When a putative class representative files an EEOC charge in a deferral state, what impact does that have on the limitations period for putative class members who were allegedly discriminated against in non-deferral states? The parties’ briefing on this subject is limited to approximately two pages from Microsoft (see Mot. at 5-6; Reply at 4-5) and two pages from Plaintiffs (see Resp. at 5-7), and the parties dedicate the majority of their briefing to debating a case from the Eastern District of Michigan (see Mot. at 6 (citing Dallas v. Alcatel-Lucent USA, Inc., No. 09-14596, 2012 WL 424878, at *7-8 (E.D. Mich. Feb. 9, 2012)); Resp. at 6-7 (same); Reply at 4-5 (same)). The court finds Alcatel-Lucent’s abbreviated discussion at a different stage in the litigation uninstructive and the abbreviated briefing insufficient to determine this legal question. See 2012 WL 424878, at *8.
*6 The court finds Microsoft has not met its burden under Rule 12(f) to demonstrate that Plaintiffs’ impugned Title VII allegations are “redundant, immaterial, impertinent, or scandalous.” Fed. R. Civ. P. 12(f). Although the motion raises a relevant dispute, the underlying legal question is unsuited for determination on a motion to strike. Accordingly, the court denies Microsoft’s motion to strike Plaintiffs’ untimely Title VII allegations without prejudice to reraising the same legal question at a different juncture.
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3. Timeliness of Plaintiffs’ WLAD Claims Microsoft also seeks to strike Plaintiffs’ allegations of discrimination under the WLAD, which date back to July 18, 2010. (See Mot. at 6 (citing FAC ¶ 35).) Microsoft argues that the WLAD’s three-year statute of limitations bars allegations beginning before September 16, 2012, which is three years before the original complaint was filed in this case. (Compl. (Dkt. # 1) at 1.) Plaintiffs agree that a three-year statute of limitations applies, but they contest how Microsoft calculates the relevant date. (Resp. at 15.) Plaintiffs argue that Ms. Moussouris tolled the statute of limitations for the entire class when she filed her EEOC charge. (Id.) Therefore, Plaintiffs conclude, the three-year period should be calculated in one of two ways: (1) by subtracting three years from the date Ms. Moussouris filed her EEOC charge—May 14, 2014—or (2) by subtracting three years from a date 300 days before Ms. Moussouris filed her EEOC charge. (Id.)
Although Plaintiffs advocate the second method of calculation, which would render claims timely if the underlying actions occurred by July 18, 2010, they cite no authority supporting this application of the WLAD’s statute of limitations. (Id.; see also FAC ¶ 135 (alleging WLAD claims beginning on July 18, 2010).) Plaintiffs’ only argument to this effect is that “if a claim arose 300 days prior to the filing of the EEOC charge, it would be timely, both under Title VII and the WLAD. Accordingly, the class period for WLAD claims runs from three years plus 300 days prior to the EEOC charge filing, or July 18, 2010.” (Resp. at 15.) This conclusory argument is unpersuasive, and the court cannot, identify a legal basis to add the 300-day EEOC limitations period for deferral states to the three-year WLAD statute of limitations. To do so would effectively combine the 300-day limitations period under Title VII and the three-year statute of limitations under the WLAD, a novel application of law without any legal support. Accordingly, the court concludes that Plaintiffs’ class period for its WLAD claims cannot begin earlier than May 14, 2011, which is three years prior to the date Ms. Moussouris filed her EEOC charge. (Mot. at 15 (citing Chen-Oster v. Goldman Sachs, 285 F.R.D. 294, 308 (S.D.N.Y. 2012)).)
Microsoft also seeks to strike Plaintiffs’ allegations to the extent they include WLAD claims occurring between May 14, 2011, and September 16, 2012. (Mot. at 6.) Plaintiffs calculate the former date by subtracting three years from the date Ms. Moussouris filed her EEOC charge (Resp. at 15), whereas Microsoft calculates the latter date by subtracting three years from the date Plaintiffs filed their initial complaint in this lawsuit (Mot. at 6). The only case law Microsoft cites that directly

supports its calculation appears in its reply, which gave Plaintiffs inadequate opportunity to respond to Microsoft’s argument. (Reply at 5 (citing Milligan v. Thompson, 953 P.2d 586, 596-97 (Wash. Ct. App. 1998)).) Moreover, the court again lacks sufficient briefing—three paragraphs from Microsoft and one from Plaintiffs—to conclusively determine this legal question at this stage. The court accordingly concludes Microsoft has not demonstrated that the WLAD claims occurring between May 14, 2011, and September 16, 2012 “have no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party,” and declines to strike those allegations. Oilier, 735 F. Supp. 2d at 1223.
*7 The court strikes Plaintiffs’ WLAD claims to the extent they pertain to employment at Microsoft prior to May 14, 2011, because they “could have no possible bearing on the subject of the litigation.” Platte Anchor, 352 F. Supp. 2d at 1057; (see EEOC Charge at 1.) However, the court declines to strike Plaintiffs’ WLAD claims occurring after May 14, 2011, without prejudice to reraising whether the WLAD’s statute of limitations should be calculated in the manner Microsoft suggests in its motion.
4. Extraterritorial Application of the WLAD to NonWashingtonian Putative Class Members Microsoft also moves to strike Plaintiffs’ WLAD claims to the extent they purport to apply outside of the State of Washington. (Mot. at 6-11.) Microsoft argues that the WLAD conflicts with the law of many other states, and employees working outside of Washington lack sufficient contacts with Washington State to constitutionally apply Washington law to their claims. (Id.) Plaintiffs respond that the WLAD applies extraterritorially and Microsoft’s conflict of laws argument is misleading.
In order for the court to constitutionally apply Washington law to the entire nationwide class, Washington law must (1) not conflict with the law of another jurisdiction with an interest in the case and (2) “have a ‘significant contact or significant aggregation of contacts’ to the claims asserted by each member of the plaintiff class, contacts ‘creating state interests,’ in order to ensure that the choice of [Washington] law is not arbitrary or unfair.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821-22 (1985) (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 310-11 (1981)); see also Allstate, 449 U.S. at 312-13 (“[F]or a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally
5

unfair.”). At least one district court in the Ninth Circuit has granted a motion to strike putative class claims based on a conflict of laws analysis. See In re Graphics Processing Units Antitrust Litig., 527 F. Supp. 2d 1011, 1027-28 (N.D. Cal. 2007).
Besides the information that Ms. Moussouris and Ms. Muenchow lived and worked in Washington and Ms. Piermarini lives in Virginia, the court has before it no allegations regarding the place of residence or place of work of the rest of the nationwide class. (See FAC 5-10.) For instance, Microsoft argues that there is a conflict between the WLAD and Idaho’s analogous law, but nothing before the court indicates that Idaho has a connection to this lawsuit. (Mot. at 7-8; see also id. at 8 n.5 (listing 17 other states, including Virginia, that purport to share this conflict with Washington law).) Even if Microsoft has employees in all 50 states that would be members of the putative class, Microsoft seems to tacitly concede that some of those states’ laws do not conflict with Washington law. In other words, the court cannot determine at this stage which other jurisdictions have “an interest in the case.” Phillips, 472 U.S. at 815-22 (“There can be no injury in applying [a state’s] law if it is not in conflict with that of any other jurisdiction connected to this suit.”); cf. id. at 815 (noting that “over 99% of the gas leases and some 97% of the plaintiffs in th[e] case had no apparent connection to the State of Kansas except for th[e] lawsuit”).
*8 The court is likewise unable to conclude that Plaintiffs fail to allege sufficient classwide connections to Washington. Id. at 821-22. Plaintiffs assert that Microsoft’s “uniform, unvalidated, and unreliable procedures for evaluating employee performance ... systematically undervalue[d] female technical employees.” (FAC ¶ 25; see also id. ¶ 29.) Microsoft argues that this ranking system depends on locality, and the court notes that Plaintiffs fail to link that system, except in conclusory fashion, to the purported disparate impact on female technical employees. (Mot at 10; see, e.g., FAC ¶¶ 26, 28); see also infra § III.C.2. However, if the employee evaluation procedure is a policy originating in Microsoft’s Washington headquarters and has the impact Plaintiffs posit, it may very well be a strong connection between each putative class member’s claims and the state of Washington. (Resp. at 17.)
The court finds that, as is the case with the majority of the motion to strike, Microsoft asks the court to make a premature determination. See Fed. R. Civ. P. 12(f). Although important questions exist regarding the extraterritorial application the WLAD, the slew of cases Microsoft cites address those questions at a later stage in the litigation, when the court is in a better position to

analyze them. (See, e.g., Mot. at 9-10); cf In re Graphics Processing, 527 F. Supp. 2d at 1028 (“This order, however, sees merit in disposing of this issue at an early stage of the litigation, particularly where the issue of whether the different state’s laws will not change significantly as this action progresses.”). Accordingly, the court denies Microsoft’s motion to strike Plaintiffs’ WLAD allegations as applied extraterritorially without prejudice to reraising the argument on a factual record.
C. Motion to Dismiss
1. Plaintiffs’ Disparate Treatment Claims Microsoft moves to dismiss Plaintiffs’ claims under Title VII and the WLAD for disparate treatment. (Mot. at 1213.) Specifically, Microsoft argues that Plaintiffs allege only that Microsoft’s policies and practices created disparate impacts of which Microsoft was aware, but that awareness of and inaction in response to a disparate impact does not support a claim for disparate treatment. (Id.) Plaintiffs respond that their allegations support each element of a prima facie case of gender discrimination, which more than suffices to state a claim. (Resp. at 20-21 (citing Sheppard v. David Evans & Assocs., 694 F.3d 1045, 1050 n.2 (9th Cir. 2012)).)
When a plaintiff lacks direct evidence of discrimination, she can nevertheless establish a prima facie case of gender discrimination by satisfying the four-part McDonnell Douglas test. Vasquez v. Cty. Of L.A., 349 F.3d 634, 641 (9th Cir. 2003). The four elements of the McDonnell Douglas test, are that the plaintiffs (1) belong to a protected class, (2) were was performing according to their employer’s legitimate expectations, (3) suffered an adverse employment action, and (4) other employees with similar qualifications were treated more favorably. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (citing McDonnell Douglas Corp., 411 U.S. 792, 802 (1973)). At the pleading stage, Plaintiffs are “not required to allege specific facts supporting each element of the prima facie showing,” but must only “include in [their] complaint facts that indicate a plausible claim for gender discrimination.” Julien v. Vallejo City Unified Sch, No. C-12-02366 EDL, 2012 WL 5349504, at *6 (N.D. Cal. Oct. 29, 2012); see also Borja-Valdez v. City & Cty. of S.F., No. 3:14-cv-04168-CRB, 2015 WL 5522287, at *4 (N.D. Cal. Sept. 18, 2015) (quoting Edwards v. Marin Park, Inc., 356 F.3d 1058, 1062 (9th Cir. 2004)) (“The prima facie case under McDonnell Douglas, however, ‘is an evidentiary standard, not a pleading requirement.’ ”).
Plaintiffs clearly allege that they are women, which makes them a member of a protected class, and that they
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performed well during their employ at Microsoft. (FAC ¶¶ 5,7, 9, 45-46, 57, 61.) Nonetheless, Plaintiffs allege that their performance evaluations, pay, and promotions suffered in comparison to similarly situated males at Microsoft. (Id. ¶¶ 22-25, 27, 29, 31, 34, 47-48, 50-51, 57, 61-65.) Each Plaintiff alleges at least one instance of an adverse employment action and that similarly situated men were treated more favorably. (See id. ¶¶ 44, 47, 4950, 53-54, 57-59, 62-66.) These allegations state a prima facie case for intentional discrimination, and nothing more is required at this stage. See Sheppard, 694 F.3d at 1050 & n.2 (reasoning that a plaintiff proceeding under the McDonnell Douglas framework need not plead a prima facie case of discrimination, but that where a plaintiff does, “the plaintiff’s complaint will be sufficient to survive a motion to dismiss”). Plaintiffs also allege with some factual specificity that they have observed similar treatment of other women at Microsoft. (See FAC ¶¶ 51, 57, 59, 67.) These allegations are sufficient for pleading purposes to support Plaintiffs’ class claim.
*9 Based on the foregoing analysis, the court denies Microsoft’s motion to dismiss Plaintiffs’ disparate treatment claims.
2. Plaintiffs’ Disparate Impact Claims Microsoft also moves to dismiss Plaintiffs’ Title VII and WLAD disparate impact claims.7 (Mot. at 15.) After substantial unpersuasive argument based on cases decided at the summary judgment stage or after fact finding (see id. at 13-15), Microsoft levels its principal contention: Plaintiffs fail to plausibly link Microsoft’s “stackranking” employee review policy with the alleged disparate impact on gender (Id. at 15 (“Plaintiffs have alleged no facts tending to show that Microsoft’s performance review system, or some part of it, caused a relevant and statistically significant disparity between men and women.”)). Microsoft therefore concludes that Plaintiffs have failed to allege facts that plausibly imply a causal link between Microsoft’s policy and the alleged disparate impact on female employees, which is one of the elements of Plaintiffs’ prima facie burden. (Id. at 1517.)
“To establish a prima facie case of disparate impact under Title VII, the plaintiffs must: (1) show a significant disparate impact on a protected class or-group;(2) identify the specific employment practices or selection criteria at issue; and (3) show a causal relationship between the challenged practices or criteria and the disparate impact.” Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1190 (9th Cir. 2002); see also Watson v. Fort Worth Bank and Tr., 487 U.S. 977, 994-95 (1988) (“Once the employment

practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.”). However, at the pleading stage, “[t]he burden of establishing a prima facie case is not onerous.... The plaintiff must only make allegations sufficient to raise an inference or presumption of discrimination.” Gilley v. JPMorgan Chase Bank, N.A., No. 12CV1774 AJB (JMA), 2012 WL 10424926, at *3 (S.D. Cal. Oct. 12, 2012) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254(1981)).
The court agrees that Plaintiffs fail to allege any facts from which the court can plausibly infer that the allegedly offending employment practice causes the alleged disparate impact.8 Plaintiffs’ description of the stack ranking system makes clear why the forced curve might lower an employee’s final score from the score the employee’s manager felt the employee deserved before applying the curve. (See id. ¶¶ 26, 45-46.) However, nowhere does the operative complaint plausibly allege why this system might “systematically undervalue [ ] female” employees or why the impact would be limited to “technical” employees. (Id. ¶ 26.) For example, the complaint asserts that the “stack ranking process ... meant that lower ranked employees were inferior and should be paid less and promoted less frequently regardless of their actual contributions to Microsoft.” (Id.) However, that allegation never identifies any reason that the stack ranking process would systematically rank women lower than men, nor can the court plausibly infer as much. (Id.)
*10 Plaintiffs’ only allegations that would close this logical gap are conclusory. For example, Plaintiffs allege that “Microsoft uses uniform, unvalidated, and unreliable procedures for evaluating employee performance that systematically undervalue female technical employees relative to their similarly situated male peers.” (Id. ¶; see id. ¶ 28 (“Upon information and belief, female technical employees tended to receive lower scores than their male peers, despite having had equal or better performance during the same performance period.”); see also id. ¶¶ 26, 44-46, 56-58, 81, 83-84, 96-99 (providing further conclusory allegations regarding causation).) This allegation and the others like it, however, merely assert as fact the causation element of Plaintiffs’ prima facie case.
In order for the court to plausibly infer that Plaintiffs can demonstrate disparate impact liability, Plaintiffs must allege something more than the conclusory assertion that the facially neutral policy they oppose in fact causes the disparate impact they challenge. See Iqbal, 556 U.S. at 678. Without requiring such a nonconclusory factual
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allegation, a disparate impact plaintiff could survive the pleading stage by alleging a facially neutral policy and a disparate impact and asserting that the former causes the latter. This conclusion would contravene the Supreme Court’s recent jurisprudence regarding pleading standards, which requires scrutiny for plausibility. See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556, 570).
The court accordingly grants Microsoft’s motion to dismiss Plaintiffs’ disparate impact claims under Title VII and the WLAD.9 Plaintiffs’ nonconclusory allegations do not give rise to a plausible inference that one or more of Microsoft’s policies caused a disparate impact upon women. Neither party has made any argument regarding leave to amend, however, which the court is to freely grant. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir. 2003) (citing Fed. R. Civ. P. 15(a)). Accordingly, the court grants Plaintiffs 30 days to amend their complaint to remedy the deficiencies identified in this subsection.
3. Ms. Moussouris’s Retaliation Claims Finally, Microsoft argues that Ms. Moussouris fails to state a claim for retaliation under Title VII and the WLAD. (Mot. at 18-22.) “The requirements for establishing a retaliation claim under Title VII and WLAD are essentially the same. Under Title VII and WLAD, to establish a prima facie case for retaliation a plaintiff must show: ‘(1) involvement in protected activity opposing an unlawful employment practice, (2) an adverse employment action, and (3) a causal link between the protected activity and the adverse action.’ ” Gillum v. Safeway, Inc., No. C13-2047BJR, 2015 WL 1538453, at *7 (W.D. Wash. Apr. 7, 2015) (quoting Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006)). The only relevant difference between the claims is that Ms. Moussouris’s WLAD claim lacks an exhaustion requirement. Gonzalez v. Nat’l R.R. Passenger Corp., 316 Fed.Appx. 744, 746 (9th Cir. 2010).
The court concludes that Ms. Moussouris alleges a pattern of behavior that plausibly gives rise to a claim under the applicable framework. Ms. Moussouris’s manager allegedly “systematically undermined Ms. Moussouris by reducing the scope of her role, even though her performance never changed.” (FAC ¶ 53.) Ms. Moussouris further alleges that her manager repeatedly took away her responsibilities and assigned them to “a less qualified and less experienced man,” while assigning Ms. Mousouris “low-level tasks that he never asked men at [her] level to do.” (Id.) Eventually, Ms. Moussouris alleges she was “forced to resign” as a result of this unfair

treatment. (Id. ¶ 54.)
*11 These allegations evince multiple adverse employment actions because it is plausible they would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 60 (2006) (internal quotations omitted); see also Ray v. Henderson, 217 F.3d 1234, 1240-43 (9th Cir. 2000) (espousing a broad approach to the definition of an “adverse employment action,” which includes “lateral transfers, unfavorable job references, and changes in work schedules”); Perez v. U.S. Postal Serv., No. C120315RSM, 2014 WL 3925317, at *6 (W.D. Wash. Aug. 12, 2014). Ms. Moussouris’s alleged complaints “about this unfair treatment,” to which Microsoft did not respond, constitute protected activity.10 (FAC ¶ 52.) Finally, the court can plausibly infer from the pattern of behavior and timeline that Ms. Moussouris alleges that her complaints caused the alleged adverse employment actions against her.11
Microsoft further argues that even if Ms. Moussouris has alleged the elements of a prima facie retaliation claim, her EEOC charge fails to exhaust her constructive discharge allegations and she therefore has not effectively pled an adverse employment action. (Mot. at 20.) The court is unpersuaded. First of all, Ms. Moussouris has pled—and includes in her EEOC charge—that her supervisor took several other actions that are independently sufficient to constitute adverse employment actions. (See, e.g., FAC ¶ 53; EEOC Charge ¶¶, 20); see also Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (citing B.K.B. v. Miami Police Dep’t 276 F.3d 1091, 1100 (9th Cir. 2002)) (reiterating that district courts are to “construe the language of EEOC charges with utmost liberality”). In other words, Ms. Moussouris need not rely on constructive discharge at this stage to constitute an adverse employment action. In addition, Ms. Moussouris resigned from her job approximately two weeks after filing her EEOC charge, and the actions described in her EEOC charge are “like or reasonably related to” the allegations of retaliation in her complaint. See Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003) (citing Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)); (EEOC Charge ¶¶ 16-20 (detailing allegations of retaliation that mirror, often verbatim, the allegations in the complaint).) In sum, Ms. Moussouris’s EEOC charge clearly evinces a retaliation claim, and that charge is not defective simply because Ms. Moussouris allegedly endured another adverse employment action several weeks after filing the charge. (EEOC Charge ¶¶ 16-20; FAC ¶ 54.)
*12 Microsoft moves to dismiss Ms. Moussouris’s WLAD retaliation claim on an independent basis, arguing
8

that Ms. Moussouris’s forced resignation allegation cannot “survive” because “[u]nder Washington law, ‘a resignation is presumed to be voluntary.’ ” (Mot. at 21 (quoting Washington v. Boeing, 19 P.3d 1041, 1049 (Wash. Ct. App. 2000)).) However, the court in Washington made its determination on a motion for summary judgment, and the plaintiffs specific claim was constructive discharge.12 19 P.3d at 1049 (requiring “evidence” on summary judgment to rebut the presumption that a resignation is voluntary); see, e.g., Sneed v. Barna, 912 P.2d 1035, 1038 (Wash. Ct. App. 1996) (applying the presumption that a “resignation is ... voluntary” at the summary judgment stage to the plaintiffs claim that “her transfer was in reality a demotion and constituted a constructive discharge in violation of her contract”). In contrast, Microsoft has filed a Rule 12(b)(6) motion to dismiss Ms. Moussouris’s WLAD retaliation claim, and constructive discharge is but one possible adverse employment action she alleged in support of that claim. (Mot. at 21.) It is therefore unclear from Microsoft’s argument whether or how the presumption of voluntary resignation applies at this stage to Ms. Moussouris’s claim.
Irrespective of whether the presumption applies in this case, Ms. Moussouris’s allegations create a plausible inference that she suffered at least one adverse employment action while working for Microsoft. (See FAC ¶¶ 53-54 (chronicling the diminishment of Ms. Moussouris’s job duties after she complained about protected activity).) Accordingly, the court denies Microsoft’s motion to dismiss Ms. Moussouris’s retaliation claims under Title VII and the WLAD.13
D. Motion for a More Definite Statement As an alternative to other relief analyzed herein, Microsoft asks the court to require a more definite statement from Plaintiffs regarding “the alleged class, time periods at issue for the claims, and the allegations to support the discrimination and retaliation claims.” (Mot. at 22-23 (citing Fed. R. Civ. P. 12(e)).) In this order, the court strikes part of Plaintiffs’ pleadings and dismisses two of Plaintiffs’ claims. See supra §§ III.B.3., III.C.2. Plaintiffs’ other claims and allegations are not “so vague

or ambiguous that [Microsoft] cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). The court accordingly denies Microsoft’s motion for a more definite statement.
E. Class Certification Schedule Pursuant to the telephone conference held on January 29, 2016, which vacated the class discovery and class certification schedule, the court directs the parties to submit an agreed class discovery and class certification schedule within 15 days of the entry of this order. (See Min. Entry (vacating the scheduling order regarding class certification (Dkt. 19)).) If the parties cannot agree on an appropriate schedule, each side may instead propose a schedule and submit a supporting brief of no more than two (2) pages. After the parties submit their input, the court will determine an appropriate schedule.14
IV. CONCLUSION
*13 The court GRANTS in part and DENIES in part Microsoft’s motion (Dkt. # 23). Specifically, the court STRIKES Plaintiffs’ WLAD claims to the extent they pertain to employment at Microsoft prior to May 14, 2011, DISMISSES Plaintiffs’ Title VII and WLAD disparate impact claims, and DENIES Microsoft’s motion in all other respects. The court GRANTS Plaintiffs 30 days to amend their complaint to remedy the pleading deficiencies identified herein and DIRECTS the parties to file a proposed class discovery and certification schedule—jointly or separately—within 15 days of the entry of this order.
Dated this 7th day of March, 2016.
All Citations
Slip Copy, 2016 WL 4472930

Footnotes

1

Both parties have requested oral argument. (Mot. at 1; Resp. at 1.) However, as the court indicated to the parties at the January

29, 2016, discovery hearing, it has concluded oral argument is not necessary to rule on Microsoft’s motion. See Local Rules W.D.

Wash. LCR 7(b)(4).

2

Plaintiffs assert that several practices contributed to discrimination in compensation and promotion, but the operative complaint

provides minimal factual detail about those practices besides a description of the stack ranking system and that system’s

relationship to compensation and promotion. (See FAC ¶¶ 30-34.)

9

3

“If a complaint is accompanied by attached documents, the court is not limited by the allegations contained in the complaint.

These documents are part of the complaint and may be considered in determining whether the plaintiff can prove any set of

facts in support of the claim.” Durning v. First Bos. Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) (internal citations omitted) (citing

Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426, 429-30 (9th Cir. 1978)).

4

Of the cases Microsoft cites in support of striking Plaintiffs’ class definition, a small fraction address a motion to strike class

allegations from the pleadings. (See Mot. at 3-5; Reply at 1-4.) Instead, most of the authority Microsoft cites makes more fact-

bound determinations, such as ruling on a motion for class certification. (See id.) Given the distinct standards applicable to a

motion for class certification, which Plaintiffs have not yet filed, and a motion to strike pleadings, which is before the court, the

court rejects as unpersuasive those cases that Microsoft cites that deal with class certification.

5

Formally, the statute requires that a complainant actually initiate proceedings with the state or local agency. 42 U.S.C. § 2000e-

5(e)(1). However, this requirement is satisfied when the EEOC refers the complaint to the state agency on the aggrieved person’s

behalf—an action the EEOC is required by regulation to take. See Williams v. Owens-Illinois, Inc., 665 F.2d 918, 923 n.2 (9th Cir.

1982); 29 C.F.R. § 1601.13(a)(4). Accordingly, by filing with the EEOC, the aggrieved party effectively files with the relevant state

agency and therefore satisfies the statutory requirement. See Williams, 665 F.2d at 923 n.2; 42 U.S.C. § 2000e-5(e)(1).

6

Courts call this doctrine “piggybacking” or the “single filing rule.” See, e.g., E.E.O.C. v. Cal. Psychiatric Transitions, Inc., 644 F.

Supp. 2d 1249, 1265 (E.D. Cal. 2009) (“A charge will be adequate to support piggybacking under the single filing rule if it contains

sufficient information to notify prospective defendants of their potential liability and permit the EEOC to attempt informal

conciliation of the claims before a lawsuit is filed.”).

7

Both parties cite to Oliver v. Pacific Northwest Bell Telephone Co., 724 P.2d 1003, 1005-06 (Wash. 1986), as demonstrating the

overlap between disparate impact claims under Title VII and the WLAD, which was patterned after Title VII. (Mot. at 13; Resp. at

19 n. 18, 20.) The court’s analysis and dismissal therefore applies to Plaintiffs’ disparate impact claims under both statutes.

8

Plaintiffs allege a disparate impact caused not just by Microsoft’s method of performing performance evaluations, but also “with

respect to ... pay, promotions, and other terms and conditions of employment.” (FAC ¶; see also Resp. at 12 (“Plaintiffs challenge

three Microsoft practices—performance evaluation (including stack ranking), compensation setting, and promotion ....”).)

Plaintiffs assert that the performance evaluation system contributed to these other discriminatory practices. (See FAC ¶¶ 27, 31,

34.) Although Plaintiffs make specific factual allegations about the performance evaluation system, their allegations pertaining to

Microsoft’s compensation and promotion practices consist largely of legal conclusions and are devoid of factual detail. See Iqbal,

556 U.S. at 678. For instance, Plaintiffs allege that Microsoft’s compensation practices were “uniform, unvalidated, and

unreliable” and its promotion practices were “common, unvalidated, unreliable,... discriminatory,” and subjective. (Id. 30, 32-34.)

Assuming the accuracy of Plaintiffs’ nonconclusory allegations and granting Plaintiffs all reasonable inferences, Plaintiffs have

“not made the kind of factual allegations that ‘nudg[e] their claims across the line from conceivable to plausible” ’ as to these

practices. Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014) (alterations in original) (quoting

Twombly, 550 U.S. at 570); see also supra n.2. The court therefore focuses its analysis of Plaintiffs’ disparate impact claim on

Microsoft’s performance evaluation method, the only “specific employment practice[ ]” about which Plaintiffs allege meaningful

factual detail. Hemmings, 285 F.3d at 1190; (see also FAC ¶¶ 26-29, 31, 34, 45-46.)

9

Because the court concludes that both disparate impact claims are insufficiently pled, it declines to consider whether Plaintiffs’

disparate impact claim under WLAD fails because it is based on discretionary decision making. (See Mot. at 17-18.)

10 Microsoft inaccurately characterizes Ms. Moussouris’s complaint as reliant “upon the legal conclusion that she complained about ‘unfair treatment’ sometime in 2013.” (Mot. at 19.) To the contrary, the complaint discusses “this” unfair treatment—a clear reference to the preceding allegations, which assert that Ms. Moussouris’s manager undermined Ms. Moussouris’s role and unjustifiably redistributed work in a manner that favored “less qualified and less experienced men.” (FAC ¶ 53; see also EEOC Charge ¶¶ 18 (adding that Ms. Moussouris’s manager rewrote her job description, explicitly revoking her prior duties, and that she complained about this behavior to “the Senior Director” and “an HR Generalist”), 20 (indicating that one date on which Ms. Moussouris made such a complaint was January 28, 2014).) These allegations make it plausible that Ms. Moussouris took protected behavior, as required to support a retaliation claim under Title VII and the WLAD. Gillum, 2015 WL 1538453, at *7.

11 The court declines to individually address the various cases Microsoft cites, many of which were decided at the summary judgment stage. (See, e.g., Mot. at 20 (citing Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (affirming summary judgment on the plaintiffs retaliation claim)) (“And, again, Moussouris has not presented any evidence that the manager who allegedly changed her assignment was aware of her alleged internal complaint.”).) The Federal Rules of Civil
10

Procedure bar Ms. Moussouris from presenting any evidence in response to a motion to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(d). Accordingly, to the extent Microsoft’s authority is specific to a later stage in the litigation, the court finds it inapposite. 12 The same general characterization applies to the other cases Microsoft cites in support of this argument (see Mot. at 21-22), and the court finds those cases unpersuasive for the same reasons. 13 Because the court bases this conclusion on Ms. Moussouris’s allegations of retaliation occurring in 2013 and 2014, the court expresses no opinion on the relevancy, sufficiency, or timeliness of her allegation that she was retaliated against after complaining about sexual harassment in 2008. (See FAC ¶ 52; EEOC Charge ¶ 19; M ot. at 18-19; Resp. at 21 n.20, 23 n.21.) 14 This order obviates the requirement that Plaintiffs move for a class determination within 180 days of filing the complaint. See Local Rules W.D. Wash. LCR 23(i)(3). Plaintiffs’ deadline to move for class certification will be based on the schedule the court sets. Additionally, the court does not favor bifurcated discovery in a putative class action and expects the parties to proceed with discovery on class issues and other topics relevant to the litigation.
11

 
 2016 WL 6037978 Only the Westlaw citation is currently available.
United States District Court, W.D. Washington, at Seattle.
Katherine Moussouris, et al., Plaintiffs, v.
Microsoft Corporation, Defendant.
CASE NO. C15-1483JLR |
Signed 10/14/2016
Attorneys and Law Firms
Adam T. Klein, Cara B. Chomski, Elizabeth V. Stork, Ossai Miazad, Outten & Golden, LLP, Rachel J. Geman, Lieff Cabraser Heimann & Bernstein, New York, NY, Anne B. Shaver, Kelly M. Dermody, Michael LevinGesundheit, Yaman Salahi, Lieff Cabraser Heimann & Bernstein, Katrina L. Eiland, Outten & Golden, LLP, San Francisco, CA, Michael C. Subit, Frank Freed Subit & Thomas, Sharon M. Lee, Lieff, Cabraser, Heimann & Bernstein, LLP, Seattle, WA, for Plaintiffs.
Jessica R. Perry, Lynne C. Hermle, Orrick Herrington & Sutcliffe, Menlo Park, CA, Lauri A. Damrell, Orrick, Herrington & Sutcliffe LLP, Sacramento, CA, Wendy Butler Curtis, Orrick Herrington & Sutcliffe, Washington, DC, Mark Steven Parris, Orrick Herrington & Sutcliffe LLP, Seattle, WA, for Defendant.
ORDER
JAMES L. ROBART, United States District Judge
I. INTRODUCTION
*1 Before the court are three motions. Defendant Microsoft Corporation moves to dismiss Plaintiffs Katherine Moussouris, Holly Muenchow, and Dana Piermarini’s (collectively, “Plaintiffs”) disparate impact claims (MTD (Dkt. # 62)) and moves to establish that the potential liability period under Washington law begins on September 16, 2012 (Msft. SOL Mot. (Dkt. # 121)).

Plaintiffs oppose both motions. (MTD Resp. (Dkt. # 71); Plfs. SOL Resp. (Dkt. # 131).) In addition, Plaintiffs move to establish that the potential liability period under Washington law begins on May 14, 2011. (Plfs. SOL Mot. (Dkt. # 122).) Microsoft opposes Plaintiffs’ motion.1 (Msft. SOL Resp. (Dkt. # 132).) The court has considered the parties’ submissions, the appropriate portions of the record, and the relevant law.2 Considering itself fully advised, the court DENIES Microsoft’s motion to dismiss, GRANTS Microsoft’s motion to establish that the potential liability period under Washington law begins on September 16, 2012, and DENIES Plaintiffs’ motion to establish that the potential liability period under Washington law begins on May 14, 2011.
II. BACKGROUND
Plaintiffs are three current or former Microsoft employees who assert claims for gender-based employment discrimination against female technical employees. (See generally SAC (Dkt. # 55); see also Compl. (Dkt. # 1); FAC (Dkt. # 8).) On May 13, 2014, Ms. Moussouris filed a charge of discrimination with the Washington State Human Rights Commission (“WSHRC”) and the Equal Employment Opportunity Commission (“EEOC”) on behalf of herself and “other similarly situated female employees in engineering and technical roles...at Microsoft.” (SAC ¶ 20, Ex. A (“EEOC Charge”) at 1-2, 5.) The discrimination charge eventually led to this lawsuit.
In their first amended complaint, Plaintiffs, on behalf of a putative class, claimed intentional discrimination and disparate impact discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Washington Law Against Discrimination (“WLAD”), RCW 49.60.010 et seq. (FAC ¶¶ 71-100.) Ms. Moussouris and Ms. Piermarini also alleged retaliation in violation of Title VII, and Ms. Moussouris added a claim for retaliation in violation of the WLAD. (Id. ¶¶ 101-10.) Ms. Moussouris and Ms. Piermarini brought these retaliation claims on behalf of themselves, not on behalf of the putative class. (Id.)
*2 On March 7, 2016, the court dismissed Plaintiffs’ disparate impact claims, as alleged in the first amended complaint, for failure to state a claim. (3/7/16 Order (Dkt. # 52) at 20-23; see also FAC.) The court concluded that Plaintiffs “merely assert[ed] as fact the causation element of Plaintiffs’ prima facie [disparate impact] claims,” and therefore held that the court could not “plausibly infer that
1

the allegedly offending employment practices cause the alleged disparate impact.” (3/7/16 Order at 21, 23.) However, the court granted Plaintiffs leave to amend their complaint (id. at 23), and on April 6, 2016, Plaintiffs filed their second amended complaint (SAC). The second amended complaint is now the operative complaint. (See Dkt.)
Plaintiffs’ second amended complaint adds substantial detail to the allegations that pertain to Plaintiffs’ disparate impact claims.3 (See, e.g., SAC ¶¶ 24, 26-32, 41, 43-51, 53.) Plaintiffs assert that the disparate impact stems from the confluence of Microsoft’s stack ranking system of evaluating technical employees, the gender makeup of Microsoft’s technical departments, and systemic biases. (Id. ¶¶ 26-41.) Because Microsoft utilizes the performance evaluations to determine compensation and promotions, Plaintiffs allege the impacts on themselves and the class they seek to represent are far-reaching. (Id. ¶¶ 42-52.)
Plaintiffs describe in detail the stack ranking process and how it allegedly disparately impacts female technical employees. From 2011 to 2013, Microsoft used a “companywide ‘stack ranking’ system for evaluating employee performance, which force ranked employees from best to worst using a performance rating from 1 [best] to 5 [worst].” (Id. ¶ 27.) Microsoft applied a curve so that only a certain percentage of employees in each “defined peer group” could attain each rating. (Id.) Microsoft applied this curve by holding biannual “calibration meetings” at which managers assessed three factors: the results an employee obtained, how the employee obtained those results, and whether the employee had a history of continuing to develop his or her capabilities. (Id. ¶¶ 29, 31.) Managers obtained this information by soliciting input from colleagues. (Id. ¶ 30.) Although an employee could suggest colleagues to evaluate the employee’s work, the managers retained full discretion to determine how much weight to assign to each evaluation. (Id.)
At the calibration meetings, managers “presented the merits of their own employees and attempted to discredit the merits of the other [managers’] employees.” (Id. ¶ 31.) Following a “week of such meetings,” the “calibration owner,” who oversaw the managers, “resolve[d] the order of the stack for all employees discussed in a given meeting.” (Id.) A “higher-level manager” then performed a final review of the calibration owner’s rankings before finalizing the stacks. (Id. ¶ 32.)
In 2014, Microsoft transitioned its performance evaluation procedure to a system called Connect, which Plaintiffs characterize as similar to the prior stack ranking

system. (Id. ¶¶ 37-38.) Managers rate their employees on a sliding scale based on their “impact,” which purports to measure “key individual accomplishments,” “contributions to the success of others,” and “results that build on the work, ideas, or efforts of others.” (Id. ¶ 39.) Managers then convene at “people discussions,” which resemble calibration meetings. (Id. ¶ 40.) The subsequent steps in the Connect process mirror those in the prior stack ranking process. (Id.)
Plaintiffs allege these performance evaluation methods are “invalid” because they “set arbitrary cutoffs among performers with similar performance” and are “not based on valid and reliable performance measures.” (Id. ¶¶ 2829; see also id. ¶¶ 38-39.) Furthermore, Plaintiffs allege that the “vast majority (over 80%)” of the managers at the calibration meetings and people discussions were men, and Plaintiffs posit that “female technical employees were systematically undervalued compared to their male peers because as a group they received, on average, lower rankings despite equal or better performance.” (Id. ¶ 34; see also id. ¶ 24 (“In positions that Microsoft categorizes as “Tech” in nature, only 16.9% of employees are female, while 83% are male.”).) Plaintiffs then detail how this alleged disparity affected female technical employees’ compensation and promotions. (Id. ¶¶ 42-52.)
*3 Microsoft moves to dismiss Plaintiffs’ disparate impact claims. (MTD.) The parties also dispute how far back the statute of limitations reaches, and the determination of that issue will impact the putative class definition. (Plfs. SOL Mot.; Msft. SOL Mot.) Those issues are now before the court.
III. ANALYSIS
A. Microsoft’s Motion to Dismiss Microsoft contends that the second amended complaint fails to adequately plead disparate impact claims because (1) it insufficiently identifies the employment practice or practices that allegedly disparately impact women (MTD at 3-6), and (2) like the first amended complaint, Plaintiffs fail to plausibly allege causation (id. at 6-12). The court addresses each of these contentions in turn.
1. Legal Standard When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court construes the complaint in the light most favorable to the nonmoving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc.,
2

416 F.3d 940, 946 (9th Cir. 2005). The court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The court, however, need not accept as true a legal conclusion presented as a factual allegation. Id. Finally, dismissal under Rule 12(b)(6) can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
“To establish a prima facie case of disparate impact under Title VII, the plaintiffs must: (1) show a significant disparate impact on a protected class or group; (2) identify the specific employment practices or selection criteria at issue; and (3) show a causal relationship between the challenged practices or criteria and the disparate impact.”4Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1190 (9th Cir. 2002). However, at the pleading stage, “[t]he burden of establishing a prima facie case is not onerous....The plaintiff must only make allegations sufficient to raise an inference or presumption of discrimination.” Gilley v. JPMorgan Chase Bank, N.A., No. 12CV1774 AJB (JMA), 2012 WL 10424926, at *3 (S.D. Cal. Oct. 12, 2012) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)).
2. Specific Employment Practice *4 “The plaintiff must begin by identifying the specific employment practice that is challenged.” Watson v. Fort Worth Bank and Tr., 487 U.S. 977, 994 (1988) (plurality opinion), superseded by statute on other grounds, 42 U.S.C. § 2000e-2(k).5 Plaintiffs challenge Microsoft’s “performance review practice.” (MTD Resp. at 3.) According to Plaintiffs, this stack-ranking process not only assesses performance but also affects pay and promotion decisions and causes a far-reaching disparate impact. (Id.) Plaintiffs cite allegations in the amended complaint that detail Microsoft’s performance review practice (id. at 4-5), and Plaintiffs therefore contend that they have stated a plausible and sufficiently specific claim for disparate impact (id. at 5-10).

Microsoft’s argues that Plaintiffs fail to challenge a specific employment practice causing a disparate impact and instead allege a “laundry list criticizing myriad aspects of” Microsoft’s performance, compensation, and promotion evaluation practices. (MTD Reply (Dkt. # 74) at 4.) To the contrary, the allegations appear somewhat unspecific only because the second amended complaint explains not just how Microsoft’s performance evaluation system functions (FAC ¶¶ 27-33, 37, 39-40), but also how that system allegedly disparately impacts women’s performance evaluations (id. ¶¶ 34-36, 38, 41), compensation (id. ¶¶ 43-47), and promotion (id. ¶¶ 4852); see also 42 U.S.C. § 2000e-2(k)(1)(B)(i) (“With respect to demonstrating that a particular employment practice causes a disparate impact..., the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.”). The detail that Plaintiffs have added in the second amended complaint enhances—rather than detracts from—the specificity with which Plaintiffs identify the challenged practice.6 In other words, the details in Plaintiffs’ allegations make it less likely, not more likely, that Microsoft will be held “liable for the myriad of innocent causes that may lead to statistical imbalances” in the workforce. Smith, 544 U.S. at 242 (internal quotations omitted).
*5 Accordingly, the court concludes that Plaintiffs sufficiently identify a challenged employment practice and declines to dismiss Plaintiffs’ disparate impact claims on that basis.
3. Causation “A plaintiff who fails to allege facts at the pleading stage...demonstrating a causal connection cannot make out a prima facie case of disparate impact.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., ___ U.S. ____, 135 S. Ct. 2507, 2523 (2015). At the pleading stage, a plaintiff may satisfy this “robust causality requirement,” id., by alleging nonconclusory facts that, accepted as true, support a reasonable inference that the challenged practice caused a disparate impact, Iqbal, 556 U.S. at 678.7
Microsoft contends that Plaintiffs fail to satisfy this pleading requirement regarding causation. (MTD at 6-12.) Plaintiffs most succinctly summarize their response in the following sentence:
3

It is more than plausible that a

performance review system which

forces a distribution on a curve

regardless of performance, allows

managers to handpick those

providing input to employee

performance, includes unreliable

criteria to measure performance,

does not instruct managers on the

weight to be afforded to particular

performance criteria nor calibrates

[sic] all managers to a uniform

application of said criteria, allows

performance scores to be altered by

subsequent managers with no

actual knowledge of an employee’s

performance but with only a

mandate to meet a particular forced

distribution, operates in an

environment

overwhelmingly

dominated by men, and under

which the Plaintiffs personally and

women they observed were

harmed, would cause a disparate

impact on women.”

(MTD Resp. at 14.) The court agrees that the characteristics of the performance review system described in the second amended complaint “nudge” Plaintiffs’ claims—particularly the disputed element of causation—“across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

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

*6 Microsoft argues that Plaintiffs’ allegations “must set forth sufficient facts to ‘tend[ ] to exclude the possibility that [ ] alternative explanation [s]’ for the alleged percentages—for example, a difference in interest or qualifications among candidates—‘[are] true in order to render [their] allegations plausible within the meaning of Iqbal and Twombly.’ ” (MTD Reply at 9 (quoting In re

Century Aluminum Co., 729 F.3d 1104, 1108 (9th Cir. 2013)) (alterations in original).) Common sense tends to exclude the possibility that Plaintiffs lacked interest in being positively evaluated, paid more, or promoted. See Iqbal, 556 U.S. at 679. Furthermore, Plaintiffs allege that they and similarly situated women performed as well as or better than their male peers but received inferior performance evaluations. (FAC ¶¶ 62, 74-75, 79-81.) Accordingly, the court concludes that, at a minimum, the parties have set forth multiple plausible causes of the alleged disparate impact on female technical employees at Microsoft. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“If there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).”); see also In re Century Aluminum Co., 729 F.3d at 1108.
Based on the foregoing analysis, the court concludes that Plaintiffs have stated plausible disparate impact claims and denies Microsoft’s motion to dismiss those claims.
B. Liability Period under the WLAD The parties agree that the WLAD imposes a three-year statute of limitations (see Plfs. SOL Mot. at 1; Msft. SOL Mot. at 1), but they dispute how that statute of limitations applies. Plaintiffs argue that Ms. Moussouris tolled the statute of limitations when she filed her EEOC charge on May 14, 2014. (Plfs. SOL Mot. at 1; SAC ¶ 20; EEOC Charge.) Plaintiffs therefore contend that their putative class can date back to May 14, 2011, for claims under the WLAD. (Plfs. SOL Mot. at 1; SAC ¶ 53.) Microsoft argues that Ms. Moussouris tolled the statute of limitations for the putative class not upon filing her EEOC charge, but when she filed the original complaint on September 16, 2015. (Msft. SOL Mot. at 1; Compl. at 1.) Pursuant to the court’s order (8/22/16 Min. Order), Plaintiffs and Microsoft have submitted simultaneous motions and simultaneous responses so the court can determine this issue.
The only argument that Plaintiffs advance in support of their position is that the court should equitably toll the statute of limitations as of the date Ms. Moussouris filed her EEOC charge.10 (See Plfs. SOL Mot. at 3-9; see also Plfs. SOL Resp. at 1-8.) “Equitable tolling is appropriate when consistent with both the purpose of the statute providing the cause of action and the purpose of the statute of limitations.” Millay v. Cam, 955 P.2d 791, 797 (Wash. 1998). The Washington Supreme Court has held that “there may be cases in which the filing deadline for a discrimination action may be equitably tolled.”11 Douchette v. Bethel School Dist. No. 403, 818 P.2d 1362,
4

1364 (Wash. 1991). However, “[c]ourts typically permit equitable tolling to occur only sparingly.” State v. Robinson, 17 P.3d 653, 659 (Wash. Ct. App. 2001) (internal quotations omitted). The proponent of equitable tolling bears the burden of proof on the issue. See Benyaminov v. City of Bellevue, 183 P.3d 1127, 1133 (Wash. Ct. App. 2008). Where, as here, none of the controlling facts are in dispute, a district court may decide the question of equitable tolling as a matter of law. See Aronsen v. Crown Zellerbach, 662 F.2d 584, 595 (9th Cir. 1981).
*7 As a threshold matter, Plaintiffs frame the majority of their argument from Ms. Moussouris’s perspective because she filed the EEOC charge.12 That focus is misplaced. Ms. Moussouris’s WLAD claims are timely irrespective of whether the court equitably tolls the statute of limitations. Although Ms. Moussouris, as a putative class representative, has a collateral interest in pursuing the claims of the putative class,13 the individuals with a direct interest in equitable tolling are those that would be in the class Plaintiffs propose (SAC ¶ 53) but would not be in the class as Microsoft seeks to narrow it (see Msft. SOL Mot. at 1). In other words, the court analyzes equitable tolling from the perspective of female technical employees who left Microsoft between May 14, 2011, and September 16, 2012, but otherwise meet Plaintiffs’ proposed class definition (the “would-be class members”). (See SAC ¶ 53.)
Plaintiffs must prove that equitable tolling applies. See Benyaminov, 183 P.3d at 1133. The record contains no evidence that any would-be class members relied on Ms. Moussouris’s EEOC charge. Indeed, given that the would-be class members allegedly experienced discrimination between May 2011 and September 2012 but took no action to assert claims before May 2014, it is unreasonable to infer that they would have pursued claims on their own behalf but for Ms. Moussouris’s EEOC charge. The record also contains no evidence implying that the would-be class members faced any hindrance to separately filing their own claims. The court therefore cannot conclude that the would-be class members exercised “reasonable diligence” in pursuing their claims. Benyaminov v. City of Bellevue, 183 P.3d 1127, 1130 (Wash. Ct. App. 2008); see also Douchette, 818 P.2d at 1365. Furthermore, there is no evidence that Microsoft acted in bad faith toward, deceived, or falsely assured the would-be class members. See Douchette, 818 P.2d at 1365 (listing the “claimant’s reliance on deception or false assurances on the part of the employer” as one factor in assessing equitable tolling).14
On the other hand, Plaintiffs present evidence that they contend supports their argument that the WSHRC

misleads discrimination victims in a manner that warrants equitable tolling. (Plfs. SOL Mot. at 6-7; Klein Decl. (Dkt. # 123)15 ¶ 8, Ex. C (“WSHRC Homepage”)); see Douchette, 818 P.2d at 1365 (adding that one factor to consider when deciding whether to equitably toll the statute of limitations is the “claimant’s reliance on authoritative statements made by the administrative agency that misled [the] claimant about the nature of her rights”). Specifically, Plaintiffs argue that the WSHRC’s website directs employment discrimination victims to file a charge “with WSHRC within six months, from the date of the alleged violation, in order to protect [the victim’s] rights.” (See WSHRC Homepage at 1 (emphasis in original).) This language could mislead a reader to think that filing with WSHRC within six months is both necessary and sufficient to protect one’s rights. The more natural reading, however, is that filing with the WSHRC within six months of the alleged violation is necessary— but not necessarily sufficient—to protect one’s rights. Because of this interpretation and the absence of evidence that any would-be class member actually detrimentally relied on the WSHRC homepage, the court finds this argument unpersuasive.
*8 Plaintiffs also argue that by indicating the classwide nature of her allegations in the EEOC charge, Ms. Moussouris put Microsoft on notice of the allegations and therefore Microsoft “will not be prejudiced by” equitable tolling. (Plfs. SOL Resp. at 4; see also Plfs. SOL Mot. at 3-4.) Microsoft does not dispute whether it had notice of the claims during the EEOC proceedings, but that notice does not fully eliminate prejudice because “[w]itnesses may no longer be available, memories have faded, and relevant evidence may no longer be obtainable.” Douchette, 818 P.3d at 1366. The EEOC charge may have mitigated the prejudice to Microsoft, but it did so in a minimal way that does not justify equitable tolling— especially given Plaintiffs’ dearth of other persuasive reasons.
In sum, the undisputed facts demonstrate this case does not warrant equitable tolling.16 Moreover, even if one or more would-be class members can make an individualized showing that justifies equitable tolling of her claims, the requisite individualized inquiry runs counter to Federal Rule of Civil Procedure 23 and renders the claims unsuited to adjudication in a class proceeding. See Fed. R. Civ. P. 23(a)(2); Wal-Mart Stores v. Dukes, 564 U.S. 338, 349-50 (2011). Therefore, the court concludes this is not one of the rare cases in which equitable tolling is appropriate and that Plaintiffs’ proposed class definition is overbroad. The court accordingly grants Microsoft’s motion regarding the potential liability period, denies Plaintiffs’ motion on that subject, and orders that in subsequent proceedings, the
5

parties treat September 16, 2012, as the operative date to define the putative class under the WLAD. (See SAC ¶ 53.)

begins on May 14, 2011 (Dkt. # 122), and ORDERS that in subsequent proceedings, the parties treat September 16, 2012, as the operative date to define the putative class under the WLAD.

IV. CONCLUSION
Based on the foregoing analysis, the court DENIES Microsoft’s motion to dismiss (Dkt. # 62), GRANTS Microsoft’s motion to establish that the potential liability period under Washington law begins on September 16, 2012 (Dkt. # 121), DENIES Plaintiffs’ motion to establish that the potential liability period under Washington law
Footnotes

Dated this 14th day of October, 2016.
All Citations Slip Copy, 2016 WL 6037978

1

Pursuant to the parties’ stipulation, the court ordered the parties to brief the liability period issue by filing a joint statement of

the issue followed by simultaneous opening briefs and simultaneous response briefs. (8/22/16 Min. Order (Dkt. # 107) at 1-2.)

The court construes both opening briefs as motions. (See Msft. SOL Mot.; Plfs. SOL Mot.)

2

Microsoft and Plaintiffs request oral argument on Microsoft’s motion to dismiss. (See MTD; MTD Resp.) Microsoft also requests

oral argument on the liability period issue (see Msft. SOL Mot.; Msft. SOL Resp.), whereas Plaintiffs do not (see Plfs. SOL Mot; Plfs.

SOL Resp.) The court concludes that oral argument would not be helpful to its disposition of these motions and denies the

requests for oral argument. See Local Rules W.D. Wash. LCR 7(b)(4).

3

Because the instant motions do not challenge the merits of Plaintiffs’ disparate treatment and retaliation claims, the court omits

those allegations from its factual summary.

4

Because the WLAD is patterned after Title VII, Washington courts have applied the same framework to disparate impact claims

under the WLAD as applies under federal law. See Oliver v. Pac. Nw. Bell Tel. Co., 724 P.2d 1003, 1005 (Wash. 1986). Accordingly,

the court’s analysis in this section applies to Plaintiffs’ state and federal disparate impact claims.

5

See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989), superseded by statute on other grounds, 42 U.S.C. § 2000e-2(k);

see also Smith v. Jackson, 544 U.S. 228, 241 (2005) (“[T]he employee is responsible for isolating and identifying the specific

employment practices that are allegedly responsible for any observed statistical disparities.” (internal quotes omitted)); Am.

Fed’n of State, Cty., & Mun. Emps., AFL-CIO (AFSCME) v. Washington, 770 F.2d 1401, 1405 (9th Cir. 1985) (“Disparate impact

analysis is confined to cases that challenge a specific, clearly delineated employment practice applied at a single point....”).

6

In its March 7, 2016, order, the court “focuse[d] its analysis of Plaintiffs’ disparate impact claim on Microsoft’s performance

evaluation method” precisely because that method was “the only ‘specific employment practice[ ]’ about which Plaintiffs

allege[d] meaningful factual detail.” (3/7/16 Order at 21 n.8 (second alteration in original) (quoting Hemmings, 285 F.3d at

1190).) Plaintiffs have not omitted any of that “meaningful factual detail” from the second amended complaint. (Compare FAC

with SAC.) Rather, Plaintiffs added the allegations regarding causation in an effort to remedy the pleading deficiencies identified

in the court’s order. (See 3/7/16 Order at 22-23 (“Plaintiffs’ nonconclusory allegations do not give rise to a plausible inference

that one or more of Microsoft’s policies caused a disparate impact upon women.”); compare FAC ¶¶ 26-29, 31, 34, 45-46, with

SAC ¶¶ 34-36, 38, 41, 43-52.)

7

See also 42 U.S.C. § 2000e-2(k)(1)(A)(i) (“An unlawful employment practice based on disparate impact is established under this

subchapter only if...a complaining party demonstrates that a respondent uses a particular employment practice that causes a

disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the

challenged practice is job related for the position in question and consistent with business necessity.”).

8

Plaintiffs allege that the stack ranking system also causes a disparate impact in compensation and promotion because the flawed

performance evaluations form the basis of compensation and promotion decisions. (SAC ¶¶ 43, 48.) Microsoft does not challenge

the sufficiency of these allegations. (See generally MTD.) Instead, Microsoft challenges whether the premise of these

6

allegations—that the stack ranking process causes a disparate impact on performance evaluations—is sufficiently pleaded. (Id. at 6-12.) Accordingly, the court focuses its analysis herein on whether Plaintiffs adequately allege that premise.

9

For instance, researchers conducting a meta-analysis of research on evaluations of female leaders concluded that women were

disproportionately devalued under certain circumstances, such as when women led or managed “in stereotypically masculine

styles,” women “occupied male-dominated roles,” and “the evaluators were men.” Alice H. Eagly, et al., Gender and the

Evaluation of Leaders: A Meta-Analysis, 111 PSYCHOL. BULL. 3, 18 (1992), (available at Dkt. # 63-3); see also Karen S. Lyness &

Madeline E. Heilman, When Fit is Fundamental: Performance Evaluations and Promotions of Upper-Level Female and Male

Managers, 91 J. OF APPLIED PSYCHOL. 777 (2006), (available at Dkt. # 63-4). Microsoft correctly argues that these studies

imperfectly apply to Plaintiffs’ allegations in this case (MTD at 10-12; MTD Reply at 10-11), but the studies nonetheless support

the reasonableness of the inference that Plaintiffs ask the court to draw regarding causation.

10 The court thus treats as unrebutted the principal argument in Microsoft’s motion—that absent equitable tolling, “Plaintiffs’ WLAD claims are timely only three years before the date on which their Complaint containing those claims was filed.” (Msft. SOL Mot. at 4.)

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

12 (See, e.g., Plfs. SOL Mot. at 5 (citing Salgado v. Atl. Richfield Co., 823 F.2d 1322, 1326 (9th Cir. 1987)) (“Here, Plaintiff Moussouris not only had to await the EEOC’s investigation of individual claims before filing her federal claims, but also had to await completion of both the agency’s and her own investigation of class claims, evidence of which is difficult to obtain at the outset of a discrimination case. Thus, the EEOC’s investigation was even more important to Ms. Moussouris’s eventual civil Class Action Complaint than it was to the plaintiff bringing individual claims in Salgado.”).)

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

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

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

16 Plaintiffs also make a more abstract argument that tolling the statute of limitations for the would-be class members upon the filing of an EEOC charge would effectuate the purposes of the WLAD. (Plfs. SOL Mot. at 3-6.) Plaintiffs correctly identify the liberal construction that Washington courts apply to the WLAD in order to further its “policy of the highest order”: “deter[ring] and eradicat[ing] discrimination in Washington.” Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 59 P.3d 655, 667 (Wash. 2002); see also RCW 49.60.020. However, the WLAD’s liberally construed substantive protections operate in conjunction with its statute of limitations. Statutes of limitations serve the “valuable purpose[s]” of “promoting certainty and finality” and “protecting against stale claims.” Rental Hous. Ass’n of Puget Sound v. City of Des Moines, 199 P.3d 393, 400 (Wash. 2009). The court is not persuaded that this case warrants subjugating the text of and “valuable” policy embodied in the WLAD’s statute of limitations in deference to the policy embodied in its substantive protections. Id.

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 2017 WL 1652910 Only the Westlaw citation is currently available.
United States District Court, W.D. Washington, at Seattle.
Katherine MOUSSOURIS, et al., Plaintiffs, v.
MICROSOFT CORPORATION, Defendant.
CASE NO. C15-1483JLR |
Signed 05/02/2017
Attorneys and Law Firms
Adam T. Klein, Cara B. Chomski, Elizabeth V. Stork, Ossai Miazad, Outten & Golden, LLP, Rachel J. Geman, Lieff Cabraser Heimann & Bernstein, New York, NY, Katrina L. Eiland, Outten & Golden, LLP, Yaman Salahi, Anne B. Shaver, Kelly M. Dermody, Michael LevinGesundheit, Lieff Cabraser Heimann & Bernstein, San Francisco, CA, Michael C. Subit, Frank Freed Subit & Thomas, Sharon M. Lee, Lieff, Cabraser, Heimann & Bernstein, LLP, Seattle, WA, for Plaintiffs.
Jessica R. Perry, Lynne C. Hermle, Orrick Herrington & Sutcliffe, Menlo Park, CA, Lauri A. Damrell, Orrick, Herrington & Sutcliffe LLP, Sacramento, CA, Wendy Butler Curtis, Orrick Herrington & Sutcliffe, Washington, DC, Mark Steven Parris, Orrick Herrington & Sutcliffe LLP, Seattle, WA, for Defendant.
ORDER APPOINTING SPECIAL MASTER
JAMES L. ROBART, United States District Judge
*1 Pursuant to Rule 53 of the Federal Rules of Civil Procedure and the terms of this order, the court appoints Michelle Peterson to serve as Special Master.
1. Appointment and Scope. Pursuant to Rule 53(a)(1)(C) and the parties’ agreement, the court appoints Michelle Peterson as Special Master to assist with Plaintiffs’ motion to compel (Dkt. ## 145 (sealed), 147 (redacted)) and other matters as the court may assign after notice to the parties.

2. No Grounds for Disqualification. Pursuant to Rules 53(a)(2) and 53(b)(3), the court attaches to this order the Special Master’s declaration identifying any relationship to the parties, counsel, action, or court that would require disqualification of a judge under 28 U.S.C. § 455.
3. Fairness Considerations. Pursuant to Rule 53(a)(3), the court considered the fairness of imposing the likely expenses on the parties and concludes that appointing a Special Master will materially advance the litigation in an efficient manner. The court will protect against unreasonable expense and delay through communication with the Special Master and the parties as appropriate.
4. Notice. Pursuant to Rule 53(b)(1), the court provided notice to the parties of its intent to appoint a Special Master and provided an opportunity to be heard on the appointment. (See Dkt. # 187.) The parties have agreed to have Michelle Peterson serve as the Special Master. (Id.)
5. Diligence. Pursuant to Rule 53(b)(2), the court directs the Special Master to proceed with all reasonable diligence.
6. Special Master’s Duties and Scope of Authority. Pursuant to Rule 53(b)(2)(A), the Special Master shall assist with certain matters, as the court may determine after notice to the parties. The Special Master shall have the authority provided in Rule 53(c), except that the Special Master may recommend but not issue sanctions, cf. Fed. R. Civ. P. 53(c)(2), and the Special Master may issue reports and recommendations but not orders, cf. Fed. R. Civ. P. 53(c)-(d).1 A court reporter shall record any proceedings before the Special Master.
7. Ex Parte Communications. Pursuant to Rule 53(b)(2)(B), the Special Master may communicate ex parte with the court without restriction. The Special Master shall not communicate ex parte with any party, except (1) with respect to administrative and procedural matters; (2) to the extent the Special Master determines ex parte communication is necessary to maintain the confidentiality of privileged communications (for example, in conducting in-camera review); and (3) as mutually agreed to by the parties. The Special Master must report any ex parte communication with a party that is undertaken to maintain the confidentiality of privileged communications. When the Special Master communicates ex parte with a party for the other purposes identified in this paragraph, the Special Master may report that communication to the extent and in the manner the Special Master deems appropriate. To the extent and in the manner the Special Master deems appropriate, the Special Master may offer the party to whom the report is
1

supplied an opportunity to respond.
*2 8. Preservation of Materials. Pursuant to Rule 53(b)(2)(C), the Special Master shall maintain orderly files consisting of all documents submitted to her by the parties and of her written reports and recommendations.
9. Review of the Special Master’s Reports and Recommendations. Pursuant to Rule 53(b)(2)(D), the court orders the following:
a. Time Limits. Pursuant to Rule 53(f)(1), a party must file any objection to a report and recommendation within ten (10) days of the report and recommendation’s entry on the docket. Cf. Fed. R. Civ. P. 53(f)(2). The parties shall note and brief any objections as second-Friday motions pursuant to the court’s Local Civil Rules. See Local Rules W.D. Wash. LCR 7(d)(2), 7(e)(2).
b. Method of Filing the Record. The parties’ submissions to the Special Master shall be sent to the Special Master and not filed on the court’s docket. Pursuant to Rule 53(e), the Special Master shall serve any reports and recommendations on the parties by filing the report and recommendation on the docket. If any party objects to a report and recommendation of the Special Master, it shall be the objecting party’s responsibility to file on the docket the objection and the record materials necessary to review the report and recommendation, including any transcripts of proceedings before the Special Master and any documents submitted by the parties in connection with the Special Master’s report and recommendation. Failure to provide the record shall constitute grounds for the court to overrule the objection.
Footnotes

c. Standards of Review of the Special Master’s Decisions. Pursuant to Rule 53(f)(3)-(4), the court shall review de novo all objections to findings of fact and conclusions of law recommended by the Special Master. Pursuant to Rule 53(f)(5), the court may set aside the Special Master’s ruling on a procedural matter only for an abuse of discretion.
10. Compensation. Pursuant to Rule 53(b)(2)(E), the Special Master’s hourly fee shall be $375.00 an hour, and the Special Master may propose to the court the use of associates and administrative staff at a lower billing rate. At the end of each month in which the court utilizes the Special Master’s services, the Special Master shall prepare and provide an invoice to counsel for Microsoft and Plaintiffs. The Special Master shall bill each side for half of the hourly fees unless the court directs otherwise. The Special Master may recommend terms as part of her reports and recommendations. The parties may object to any bill from the Special Master, and the court will review any challenged bill. In the absence of a challenge, the parties shall pay the Special Master’s invoices within fourteen (14) days of receipt.
11. Amendments. Pursuant to Rule 53(b)(4), the court may amend this order at any time after notice to the parties and an opportunity to be heard.
All Citations
Slip Copy, 2017 WL 1652910

1

The court has already provided notice (see Dkt. ## 136, 187-90) that the Special Master would issue a report and

recommendation regarding Plaintiffs’ pending motion to compel (Dkt. ## 145, 147). The court therefore directs the Special

Master to proceed with all reasonable diligence in preparing a report and recommendation on that motion.

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UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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10

KATHERINE MOUSSOURIS, et al.,

CASE NO. C15-1483JLR

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Plaintiffs,

v.

12

MICROSOFT CORPORATION, 13

Defendant. 14

ORDER DENYING CLASS CERTIFICATION

15

I. INTRODUCTION

16

Before the court is Plaintiffs Katherine Moussouris and Holly Muenchow’s

17 (collectively, “Plaintiffs”) motion for class certification. (MCC (Dkt. ## 228 (sealed),

18 381 (redacted)).) Defendant Microsoft Corporation (“Microsoft”) opposes the motion.

19 (Resp. (Dkt. # 474).) Microsoft also filed a surreply to strike portions of Plaintiffs’ reply.

20 (Surreply (Dkt. # 349).) The court has considered the motion, the submissions filed in

21 support of and in opposition to the motion, the relevant portions of the record, and the

22 applicable law. The court also heard oral argument from the parties on June 11, 2018.

ORDER - 1

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1 (See Min. Entry (Dkt. # 503).) Being fully advised, the court DENIES the motion for the

2 reasons detailed below.

3

II. BACKGROUND

4

Microsoft is a “global provider of software and software-related services as well as

5 hardware devices.” (SAC (Dkt. # 55) ¶ 2.) Microsoft recognizes that diversity “is an

6 integral and inherent part of [its] culture, fueling [its] business growth while allowing [it]

7 to attract, develop, and retain [the] best talent.” (Parris Decl. (Dkt. ## 288 (sealed), 287

8 (redacted)) ¶ 3, Ex. 1 (“Resp. Docs.”) at 354.)1 To that end, Microsoft devotes significant

9 resources to various diversity and inclusion (“D&I”) initiatives, including D&I training

10 courses, D&I plans to recruit and retain diverse employees, and D&I toolkits to aid

11 internal discussions regarding diversity. (Dhillon Decl. (Dkt. ## 297 (sealed), 387

12 (redacted)) ¶¶ 6-13.) Microsoft’s official policy (“Anti-Harassment/Anti-Discrimination

13 policy”) prohibits all workplace discrimination and expresses zero tolerance for any form

14 of workplace harassment. (Resp. Docs. at 18, 173.) Microsoft’s Employment Relations

15 Investigation Team (“ERIT”) investigates any alleged violations of that policy. (Parris

16 Decl. ¶ 7, Ex. 5 (“DeLanoy Dep.”) at 31:3-8.)

17

Plaintiffs—former and current Microsoft employees (SAC ¶¶ 6, 8)—challenge

18 Microsoft’s “continuing policy, pattern, and practice of sex discrimination against female

19 //

20 //

21

1 For the set of Microsoft corporate documents filed with the responsive briefing, the

22

court cites the page number located at the bottom center of the exhibit. (See generally Resp. Docs.)

ORDER - 2

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1 employees in technical and engineering roles . . . with respect to performance

2 evaluations, pay, promotions, and other terms and conditions of employment.” (Id. ¶ 1.)

3 Plaintiffs claim that, as a result of Microsoft’s employment policies and practices, female

4 technical employees “receive less compensation and are promoted less frequently than

5 their male counterparts.” (Id. ¶ 3; see also id. ¶ 25 (“Microsoft discriminates against

6 female technical employees in (1) performance evaluations; (2) compensation; and (3)

7 promotions.”).) Plaintiffs now seek to certify a proposed class of female employees in

8 Stock Levels 59-67 working in the Engineering and/or the I/T Operations Professions

9 from September 16, 2012, to the present. (MCC at 1.)

10

The court details Microsoft’s structure, relevant employment practices, and history

11 with gender equity issues before summarizing Plaintiffs’ employment and the relevant

12 procedural background.

13 A. Microsoft’s Structure

14

Microsoft categorizes its employees into various groups. First, Microsoft groups

15 its employees into Professions, the “highest level in Microsoft’s taxonomy” (Whittinghill

16 Decl. (Dkt. ## 321 (sealed), 320 (redacted)) ¶ 7), defined as “a group of functional areas

17 . . . with common functional skillsets, business results, and success differentiators,”

18 (Shaver Decl. (Dkt. ## 229 (sealed), 233 (redacted)) ¶ 5, Ex. A (“MCC Docs.”) at 757).2

19 Within Professions, Microsoft classifies employees into Disciplines, subgroups that

20 //

21

2 For the set of Microsoft corporate documents filed with Plaintiffs’ motion, the court

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cites the ECF-generated page number at the upper right-hand corner of the exhibit. (See generally MCC Docs.)

ORDER - 3

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1 represent “a different area of focus within a Profession.” (Whittinghill Decl. ¶ 8.)

2 Microsoft further breaks down Disciplines into Standard Titles, which “represent a

3 different role within a Discipline.” (Id. ¶ 10.) For example, an employee can be in the

4 Engineering Profession in the Program Management Discipline with the Standard Title of

5 Program Manager. (Shaver Decl. ¶ 9, Ex. E (“Whittinghill Dep.”) at 103:20-104:1.)

6

Microsoft further divides Standard Titles into areas of specialization. (See

7 Whittinghill Decl. ¶ 21.) This further subdivision, called a “functional hierarchy,”

8 features six tiers of division. (See id. ¶ 22.) Oftentimes, this functional hierarchy—rather

9 than the larger groupings of Profession, Discipline, or Standard Title—tracks

10 reorganizations in the business that may affect an employee’s responsibilities. (Id.)

11 Thus, an employee may “keep the same Standard Title, Career Stage, and Stock Level,

12 but end up working on very different products and/or services.” (Id.)

13

The functional hierarchy reveals that there may be numerous subdivisions within a

14 Standard Title. (See id. ¶¶ 34-35.) For example, within the Data & Applied Scientist

15 Standard Title, the functional hierarchy describes 268 unique positions that employees

16 hold. (Id. ¶ 35, Ex. C.) As a result, job positions with the same Standard Title may

17 describe significantly different roles. (See id. ¶¶ 39-40, Ex. D (comparing a “Software

18 Engineer II” on the Azure, Internet of Things team to a “Software Engineer II” on the

19 Xbox team).) The number of unique positions varies from year to year because

20 Microsoft alters its team structure in response to market demands. (Id. ¶ 37.) Thus, in

21 any given year, Microsoft is likely to form new teams or eliminate old teams. (See id.)

22 Those changes can generate or remove employee roles. (See id.)

ORDER - 4

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Microsoft also utilizes Stock Level and Career Stage classifications. Stock Level,

2 also known as “Pay Level,” represents “compensation ranges” that are set “relative to the

3 professions [Microsoft] employ[s] and the markets in which [Microsoft] work[s].” (MCC

4 Docs. at 760; see id. (“Pay levels (such as levels 50, 59, or 64) represent salary ranges,

5 based on an ongoing analys[i]s of local and discipline-specific labor markets and

6 Microsoft’s compensation strategy.”).) Stock Levels range from 59 to 98 (see Shaver

7 Decl. ¶ 10, Ex. F (“Ritchie Dep.”) at 521:10-13; Farber Rep. (Dkt. ## 332 (sealed), 384

8 (redacted)) ¶ 20), and pay increases as the Stock Level increases (see Farber Rep. ¶ 20;

9 Saad Rep. (Dkt. ## 354-1 (sealed); 385 (redacted)) ¶ 145). Career Stage “indicates at a

10 high level the general degree of scope and impact of a role.” (Whittinghill Decl. ¶ 15.)

11 There are three Career Stage designations. An “Individual Contributor” (“IC”) is “an

12 entry-level employee with little or no relevant experience.” (Id. ¶ 16.) A “Lead” is “a

13 professional who primarily contributes as an IC but also supervises a small team of ICs.”

14 (Id. ¶ 17.) A “Manager” “manag[es] ICs and/or other managers.” (Id. ¶ 18.)

15 B. Microsoft’s Pay and Promotion Processes

16

Plaintiffs challenge a specific aspect of Microsoft’s employee evaluation process:

17 the Calibration Process, during which managers compare and standardize employees’

18 performance ratings across a cohort of similarly-leveled colleagues. (See Ritchie Dep. at

19 136:24-137:4, 157:6-8; see also Resp. Docs. at 55; DeCaprio Decl. (Dkt. # 295) ¶ 4; Helf

20 Decl. (Dkt. ## 301 (sealed), 300 (redacted)) ¶ 4.) The Calibration Process took two

21 forms over the course of the class period. From 2011 to 2013, Microsoft called the

22 comparison processes “calibration meetings,” with “a focus on the results achieved by the

ORDER - 5

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1 employee and how he or she achieved those results.” (Wilson Decl. (Dkt. # 322) ¶ 9.) In

2 May of 2014, Microsoft altered components of this process and renamed calibration

3 meetings “people discussions.” (DeCaprio Decl. ¶ 4.) The court discusses “calibration

4 meetings” and “people discussions” before addressing the evaluation of the Calibration

5 Process conducted by Plaintiffs’ expert Dr. Ann Marie Ryan.

6

1. Calibration Meetings

7

Managers held calibration meetings to discuss employees’ performance ratings

8 relative to their similarly-positioned peers to determine the final performance ratings for

9 each employee. (Resp. Docs. at 55; Helf Decl. ¶ 4.) Managers held those meetings at the

10 end of the assessment process, after they had reviewed self-evaluations, feedback from

11 others, and their own observations to recommend an initial Performance Rating from 1 to

12 5, with 5 as the lowest and 1 as the highest. (See Resp. Docs. at 39; Helf Decl. ¶ 9.)

13 Managers based their initial ratings on three inputs: “What results were achieved, How

14 they were achieved, and [the] Proven Capability” of the employee over time. (Resp.

15 Docs. at 39 (bolding in original).) To aid managers’ evaluation of the “what” and the

16 “how,” Microsoft provided general definitions and a rubric describing what each

17 numerical rating represented. (Id. at 50-51.) For instance, Microsoft defined the “What”

18 as evaluating the employee’s “[r]esults against commitments for the past fiscal year.”

19 (Id. at 50.) Additionally, Microsoft noted that a “1” should be given out to approximately

20 20% of employees who “[g]reatly surpassed expectations with performance and business

21 impact greater than the vast majority of peers.” (Id. at 51.)

22 //

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1

Managers then handed over their initial performance ratings to and discussed them

2 with the Calibration Manager, who represented a number of employees at a calibration

3 meeting. (Id. at 52-53.) At the calibration meeting, Calibration Managers explained the

4 reasoning for employees’ initial performance rating and compared the relative

5 performance of employees doing similar work. (DeCaprio Decl. ¶ 4.) Employees were

6 grouped by Stock Level into peer groups for these comparisons. (MCC Docs. at 13.)

7 The goal of the meeting was to “ensure there was consistency to how performance was

8 evaluated and rated vis-à-vis the performance of [an employee’s] peers.” (Wilson Decl.

9 ¶ 9.) Microsoft encouraged managers to refrain from making “artificial distinctions . . .

10 simply to meet an approximate distribution” of how many employees should receive a

11 certain rating. (Resp. Docs. at 55.) Thus, Microsoft recognized that an “extraordinary

12 high-performing group may . . . justify a distribution that is skewed to the higher end of

13 an approximate distribution,” whereas an “underperforming group may . . . justify a

14 distribution that is skewed to the lower end.” (Id.)

15

Beyond this guidance, Microsoft sought to “empower leaders and managers to use

16 their judgment in evaluating the performance of their employees” by localizing the

17 evaluation process to each group. (Wilson Decl. ¶ 11; see also Helf Decl. ¶ 6 (stating

18 that the calibration meetings “looked different depending on the level of the roles for the

19 employees involved and . . . the way the leader wanted to run the meeting”).) Microsoft

20 encouraged every meeting leader to create the approach to be used in his or her

21 calibration meeting, including what issues and topics to discuss; how the meeting would

22 be conducted; and the specific qualities that each group would look for in evaluating

ORDER - 7

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1 employees. (Wilson Decl. ¶ 13; id. ¶ 21 (describing calibration meetings as “designed to

2 be flexible”).) Thus, although Calibration Managers ran the meetings according to

3 Microsoft’s framework, “the managers participating in the calibration meeting”

4 determined “the common core priorities . . . for the larger group,” any “common

5 objectives,” and “what good work looked like.” (DeCaprio Decl. ¶ 8.)

6

As a result, “the personalities in the room” largely dictated how calibration

7 meetings unfolded. (Wilson Decl. ¶ 15; see also Helf Decl. ¶ 15 (“No two [c]alibration

8 [m]eetings that I attended were the same.”).) Calibration meetings thus varied “both

9 structurally and substantively.” (DeCaprio Decl. ¶ 9.) Structurally, the meeting leader

10 determined how the discussion would be held, such as through the use of a PowerPoint

11 versus the use of physical cards to sort employees. (Id.) Substantively, the discussions

12 focused on different issues, such as budgetary needs versus employee talent. (Id. ¶ 10.)

13

Managers similarly discussed promotions during calibration meetings. In

14 determining promotions, managers considered business need, demonstrated employee

15 readiness, and available budget. (Helf Decl. ¶ 30; Resp. Docs. at 38.) Microsoft, as with

16 the performance ratings, provided general definitions of the three promotion criteria.

17 (See Resp. Docs. at 38.) Because promotions depended upon the budget in any given

18 year, promotions varied across levels, locations, Professions, and year. (See id. at 36.)

19

The calibration meeting recommendations were provided, or “rolled up,” to the

20 next level of management for review. (See Wilson Decl. ¶ 24.) In other words, the

21 recommendations reached by lower-level managers “cascaded upwards” for approval by

22 higher-level managers. (See Helf Decl. ¶ 21.) Higher-level managers did not usually

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1 make significant adjustments to the individual recommendations but would instead

2 “focus[] on the budget and ensur[e] the actual distribution was in line with the budget.”

3 (Id. ¶ 27.) The roll up process continued until the recommendations reached the

4 Executive Vice President (“EVP”), who “in practice . . . did not change recommendations

5 made at” lower-levels. (Id.; see also Wilson Decl. ¶ 24.)

6

2. People Discussions

7

Since 2014, Microsoft “moved away from lengthy meetings for comparing and

8 evaluating employees” (Helf Decl. ¶ 31) and instead shifted its evaluation process to

9 focus on “the impact the employee’s performance makes on his or her organization and

10 across the company in light of his or her role” (Wilson Decl. ¶ 10). In this new

11 evaluation process, managers held “people discussions” to evaluate the impact of an

12 employee’s performance. (Id.) Unlike before, Microsoft no longer had “numerical

13 performance ratings or a company-wide anticipated distribution of performance ratings or

14 annual rewards.” (Id.; see also DeCaprio Decl. ¶ 4.) Thus, the “people discussion”

15 meeting often focused on “what rewards are right for each individual employee based on

16 the impact that particular employee’s performance had on the group and the company.”

17 (Wilson Decl. ¶ 23; see also Helf Decl. ¶ 4.)

18

Aside from the change in focus, the people discussions resembled the calibration

19 meetings. Like calibration meetings, the process rolled upwards, with higher-level

20 managers reviewing the recommendations made by lower-level managers. (See Helf

21 Decl. ¶ 36.) And as was the case previously, higher-level managers are less likely to

22 substantively change recommendations, especially those concerning lower-level

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1 employees. (See id.) This roll-up process continued until the head of the organization

2 approved the recommendations. (See id.; Wilson Decl. ¶ 24.)

3

The people discussion process “empower[ed] managers to own the assessment by

4 focusing solely on the individual employee instead of on the individual as compared to

5 others.” (Helf Decl. ¶ 31.) Thus, Microsoft “encourage[d] leaders to take more direct

6 ownership of the evaluation process.” (Id. ¶ 35.) Managers “ha[d] much more latitude to

7 determine the priorities for their organization and how to accomplish those priorities,”

8 including what inputs to consider during the people discussions and which employees to

9 discuss. (Id.; DeCaprio Decl. ¶ 14 (observing variations in people discussions, such as

10 who was discussed and how those discussions were run).) Managers could even define

11 for themselves “what high impact for different types of roles looks like, such as what type

12 of impact do [they] expect of a Level 59 software engineer role.” (DeCaprio Decl. ¶ 14.)

13 As a result, “there is a lot of discretion as to how [managers] reach [their] end results,”

14 and the people discussions “var[ied] significantly” based on who was leading the

15 meeting. (Id. ¶¶ 35, 42-43.)

16

Managers also discussed promotions during people discussions, as they did

17 previously during calibration meetings. They viewed the promotion criteria with a focus

18 on employee impact. (See Helf Decl. ¶ 39.) Managers had “complete discretion” as to

19 their justifications for a promotion. (Id.)

20

3. Dr. Ryan’s Evaluation

21

To challenge Microsoft’s Calibration Process, Plaintiffs submit the expert report

22 of Dr. Ann Marie Ryan, a professor of organizational psychology. (See Ryan Rep. (Dkt.

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1 ## 231 (sealed), 379 (redacted)) ¶ 1.) Dr. Ryan reviewed the process Microsoft

2 implemented to make pay and promotions decisions and examined how Microsoft’s

3 processes aligned with best practices for employee evaluation. (See id. ¶¶ 5, 11.) After

4 reviewing the relevant materials, Dr. Ryan found “no evidence that compensation and

5 promotion decisions are made reliably at Microsoft.” (Id. ¶ 12.) Specifically, Dr. Ryan

6 takes issue with the lack of “sufficient standardization” in the Calibration Process, which

7 “undermines the reliability and validity” of personnel decisions. (Id. ¶ 13.)

8

Overall, Dr. Ryan criticizes Microsoft for not providing managers sufficient

9 guidance on how to make pay and promotion decisions. For instance, Dr. Ryan observes

10 that Microsoft “does not provide evidence to support how compensation level and

11 promotion decisions are determined,” as reflected in the fact that managers are allowed to

12 give open-ended promotion justifications that do not need to be tied to the promotion

13 criteria. (Id. ¶¶ 18-19 (emphasis removed).) As a result, managers may “use varied

14 criteria across individuals for the same decision”; use “irrelevant criteria”; or “use

15 different standards or weighting of the same criteria.” (Id. ¶ 20.) Additionally, Dr. Ryan

16 takes issue with the fact that Microsoft did not prescribe any weights to the underlying

17 “what,” “how,” and “capacity” criteria, so that managers could weigh these criteria

18 differently. (Id. ¶¶ 26-31.)

19

Moreover, Dr. Ryan observes a lack of uniformity in what information managers

20 considered and the process for considering that information. (See id. ¶ 32.) For example,

21 while Microsoft gave “general guidance” to consider “work products and conversations,”

22 “the quantity and nature of information serving as input into compensation level and

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1 promotion decisions varied.” (Id. ¶ 34.) Dr. Ryan also finds variation in “how the

2 process of evaluating employee performance . . . was conducted” and “how it was

3 determined which employees were discussed.” (Id. ¶ 35.)

4

Lastly, Dr. Ryan critiques Microsoft for inadequately monitoring the Calibration

5 Process to ensure the validity of outcomes. (See id. ¶¶ 40-42.) No reports are generated

6 with regard to monitoring, so it was “unclear” whether the monitoring was consistently

7 done, and if so, the quality of the monitoring efforts. (Id. ¶ 42.) Microsoft allegedly does

8 not train managers on how to weigh criteria in relation to job requirements or how to

9 justify pay and promotion decisions with reference to the criteria used. (Id. ¶ 43.) Nor

10 does Microsoft provide feedback to its managers as to how their decisions are or are not

11 calibrated to the relevant criteria. (Id.)

12 C. Microsoft Experience with Gender Equity Issues

13

Microsoft is no stranger to the issue of gender pay equity. In October 2014, the

14 Chief Executive Officer (“CEO”) of Microsoft, Satya Nadella, sent a company-wide

15 email stating that “the overall differences in base pay among genders . . . (when we

16 consider level and job title) is consistently within 0.5% at Microsoft.” (MCC Docs. at

17 38.) Microsoft also published an Equal Pay Study in April 2016, in which it stated that

18 women at Microsoft earn 99.8¢ for every $1.00 earned by men with the same job title and

19 level. See Katherine Hogan, Ensuring Equal Pay for Equal Work, Official Microsoft

20 Blog (Apr. 11, 2016), https://blogs.microsoft.com/blog/2016/04/11/ensuring-equal-pay-

21 equal-work/ (last visited June 21, 2018). After both announcements, Microsoft

22 employees responded that these studies, which only analyzed pay within the same levels,

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1 portray a false equity and hide disparity in promotions. (See, e.g., MCC Docs. at

2 516-17.) As one employee put plainly, “[t]here is an important distinction between equal

3 pay for equal level, and equal pay for equal work.” (Id. at 771.)

4

In response to employee concerns and as acknowledgement of the work remaining

5 to address the pay gap, the Senior Leadership Team (“SLT”) at Microsoft “meet[s] on a

6 regular basis” to “review and act on the [D&I] data.” (Id. at 1071.) For example, the

7 2015 SLT D&I Core Priorities Action Plan details several “accountabilities” that various

8 SLT members “own,” including measuring and tracking promotion trends and time in

9 role for women; reviewing the recruitment, hiring, and development processes for

10 unconscious bias; updating and requiring all employees to complete an unconscious bias

11 training; and creating sponsorship opportunities for higher-leveled female employees.

12 (Id. at 270-73.) Microsoft also employs ERIT as a tool against discrimination. From

13 2010 to 2016, ERIT received 238 complaints by female employees, 118 of which

14 concerned gender discrimination. (See Shaver Decl. ¶ 7, Ex. C.) Of these 118, ERIT

15 concluded only once that the complaint was founded—that is, the conduct complained of

16 violated the Anti-Harassment/Anti-Discrimination policy. (See id. at 5.) However, even

17 when ERIT determines a complaint is unfounded, ERIT may still discipline the alleged

18 offender. (See, e.g., Resp. Docs. at 283.)

19

Additionally, as a federal government contractor, Microsoft has been audited by

20 the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”)

21 for compliance with federal law and regulations. The OFCCP conducted several audits

22 of Microsoft’s locations without findings of violation. (See Parris Decl. ¶ 21, Ex. 19.)

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1 On one occasion, however, in 2016, the OFCCP issued a Notice of Violation letter

2 regarding

3

4

5

6

7

(See id.)

8 D. Plaintiffs’ Employment at Microsoft

9

Ms. Moussouris and Ms. Muenchow both worked at Microsoft—Ms. Moussouris

10 in the Engineering Profession and Ms. Muenchow in both the Engineering and I/T

11 Operations Professions. Plaintiffs also offer several female employees’ declaration

12 testimony detailing their experiences at Microsoft. The court summarizes each in turn.

13

1. Katherine Moussouris

14

Ms. Moussouris worked at Microsoft from April 2007 to May 2014. (SAC ¶ 6;

15 Moussouris Decl. (Dkt. # 242) ¶ 2.) Microsoft hired Ms. Moussouris in April of 2007 as

16 a Level 62 Security Program Manager for the Trustworthy Computing Group.

17 (Moussouris Decl. ¶ 2; SAC ¶ 62.) Her position, involving work as a security strategist,

18 featured what Ms. Moussouris calls “unique elements” because she created “new

19 programs that didn’t exist before.” (Moussouris Dep. (Dkt. # 288-5) at 279:4-11.) Thus,

20
3
21

22

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1 she was not aware of another employee whose role or responsibilities were similar to

2 hers. (See id. at 279:4-17.)

3

Microsoft promoted Ms. Moussouris to a Level 63 Program Manager II in 2008

4 and to a Level 64 Senior Program Manager in 2010. (Moussouris Decl. ¶ 2.) After 2010,

5 however, Ms. Moussouris received no more promotions, despite purportedly being

6 “responsible for groundbreaking efforts in the security industry” and obtaining

7 “substantial defensive security research prizes.” (See id. ¶¶ 4-5.) In 2012, despite her

8 eligibility for promotion to a Level 65 Principal Program Manager, “two less qualified

9 men in [her] group were promoted over [her], even though they had not performed the

10 same scope of work nor received the same level of recognition in the industry.” (Id. ¶ 4.)

11 Her direct manager gave her an initial performance rating of 2 out of 5; her performance

12 rating was bumped down to a 3 during the Calibration Process. (Moussouris Dep. at

13 68:12-13; 93:10-94:4.) After her performance rating was downgraded, her manager

14 reportedly expressed regret that she “was not given the score that he believes [she]

15 deserved.” (Id. at 94:2-4.) Ms. Moussouris believes that gender discrimination affected

16 her 2012 performance review. (Id. at 260:4-6.) The following year, in 2013, Ms.

17 Moussouris was up for a promotion but again passed over; another male colleague

18 secured leadership of the team. (Moussouris Decl. ¶ 4.) Her manager made an initial

19 performance rating recommendation of a 1 out of 5, which was bumped down to a 2

20 during the Calibration Process. (SAC ¶ 64.)

21

Ms. Moussouris, as a manager herself, supervised several employees. (See

22 Moussouris Dep. at 147:12-24.) Some of those employees disagreed with her

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1 management style. (Id. at 149:10-14, 150:23-25.) As a manager, Ms. Moussouris

2 participated in the Calibration Process by reviewing her employees and attending

3 calibration meetings. (See id. at 103:16-23, 104:19-21.) Some employees under Ms.

4 Moussouris had their initial performance recommendations downgraded. (See id. at

5 119:4-18.)

6

Ms. Moussouris describes the Microsoft culture as “hostile towards women.”

7 (Moussouris Decl. ¶ 6.) She claims that female employees were “frequently interrupted”;

8 “talked over at meetings”; ignored when they shared ideas that male counterparts would

9 later raise and receive praise for; and excluded from important discussions and business

10 opportunities. (Id.) She also contends that women’s judgment and expertise were “much

11 more likely to be called into question than men’s.” (Id.) Ms. Moussouris describes this

12 problem as “pervasive” and one that female employees and managers regularly discuss.

13 (Id.)

14

Making complaints to Human Resources (“HR”), Ms. Moussouris attests, “does

15 not make any difference.” (Id. ¶ 7.) In fact, Ms. Moussouris made three complaints to

16 HR while at Microsoft. First, she complained about the Director of her group who

17 allegedly sexually harassed women he oversaw. (Id.) Although HR found that he “had

18 in fact sexually harassed these women,” the Director was “merely re-assigned to a

19 different group, while retaining his title and influence.” (Id.) Before he was re-assigned,

20 he gave Ms. Moussouris a low bonus. (Id.) Ms. Moussouris complained about this

21 retaliation but again, HR took no action. (Id.) Lastly, Ms. Moussouris complained when

22 her new supervisor—a man who was promoted over her—replaced her responsibilities

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1 with “low-level tasks that no men in [the] group were asked to do.” (Id.) Once again,

2 HR allegedly took no action. (Id.)

3

2. Holly Muenchow

4

Ms. Muenchow has worked for Microsoft since September 2002. (Muenchow

5 Decl. (Dkt. # 243) ¶¶ 1-2.) Microsoft initially hired her as a Level 58 Software Test

6 Engineer in the Engineering Profession. (Id. ¶ 2; SAC ¶ 73.) She then became a Level

7 59 Software Design Engineer in 2005. (Id.) Microsoft promoted Ms. Muenchow to a

8 Level 60 employee in the beginning of 2008 and a Level 61 employee later that same

9 year. (Id.) In 2012, Ms. Muenchow transferred to the I/T Operations Profession to

10 become a Level 62 Senior Program Manager. (Id.) In 2016, she switched back to the

11 Engineering Profession as a Senior Operations Program Manager. (Id.) Ms. Muenchow

12 is currently a Level 63 employee. (See id. ¶ 4.)

13

Like Ms. Moussouris, Ms. Muenchow believes that Microsoft compensated her

14 less than her similarly-situated male colleagues. (Id. ¶ 3.) Additionally, Ms. Muenchow

15 asserts that Microsoft denied her promotions that were instead given to less qualified men

16 and that the promotions she did receive should have occurred sooner. (Id. ¶ 4; see

17 Muenchow Dep. (Dkt. ## 288-6 (sealed), 287-4 (redacted)) at 60:1-7.) She believes her

18 managers discriminated against her by requiring her to adhere to expectations rooted in

19 gender stereotypes—such as tone of voice—that would not apply to her male colleagues.

20 (Muenchow Dep. at 52:17-53:6, 55:1-12.) This gender bias in expected behavior, she

21 asserts, informed much of the negative feedback she received and resulted in her

22 achievements not being acknowledged as her male colleagues’ efforts were. (See, e.g.,

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1 id. at 177:10-16, 190:25-191:10.) Although Ms. Muenchow never advanced higher than

2 a Level 63, she saw “male colleagues be promoted to high levels for which [she] was

3 qualified and not considered.” (Muenchow Decl. ¶ 4.) She also observed “men generally

4 advanc[ing] more rapidly than women, despite similar scope of work and performance.”

5 (Id. ¶ 5.)

6

Ms. Muenchow also describes a culture of hostility at Microsoft towards women.

7 (See id. ¶ 6.) She states that women are “held to a different standard than men.” (Id.)

8 For instance, women are labeled as “too aggressive” when they speak up in meetings,

9 whereas men “routinely interrupt or talk over women without criticism.” (Id.) Her

10 former manager, who was female, revealed to Ms. Muenchow that she could not

11 “advocat[e] passionately” for her employees during calibration meetings because of this

12 perceived bias. (Id.)

13

Like Ms. Moussouris, Ms. Muenchow has also filed complaints with HR to no

14 avail. (See id. ¶ 7.) Ms. Muenchow complained to HR about the “culture of bias towards

15 women.” (Id.) In response, HR informed her that Microsoft would introduce “bias

16 training,” but Ms. Muenchow reports that the training has not resolved the issue. (Id.)

17 Ms. Muenchow has also requested to see Microsoft’s data regarding compensation and

18 promotion rates for female employees, but HR stated that it did not have access to that

19 data. (Id.)

20

3. Other Employees

21

Nine other female employees echo Ms. Moussouris and Ms. Muenchow’s

22 sentiments. (See, e.g., Dove Decl. (Dkt. # 239) ¶ 4.) The female employees, through

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1 declarations submitted by Plaintiffs, report similar claims of compensation

2 discrimination, contending that they were paid less than their similarly-situated male

3 counterparts (see Miller Decl. (Dkt. # 241) ¶ 5) and at times, even below the pay of

4 less-qualified male colleagues (see Smith Decl. (Dkt. # 244) ¶ 5). At least one woman,

5 Debra Dove, reports that her pay disparity resulted from the Calibration

6 Process, during which “someone had to receive zero rewards, and that someone became

7 [her] because of [her] gender.” (Dove Decl. ¶ 5.)

8

These female employees also report that they were denied promotions ultimately

9 given to similarly-situated or less qualified male employees. (See, e.g., Albert Decl.

10 (Dkt. # 237) ¶ 6; Smith Decl. ¶ 6.) For instance, Heidi Boeh sought a promotion after

11 returning from maternity leave. (Boeh Decl. (Dkt. # 238) ¶ 5.) Her manager stated that

12 he “did not want to ‘waste’ a promotion on [her] in case [she] became pregnant again,”

13 due to his understanding that she “would want to ‘time’ [her] children to be close in age.”

14 (Id.) Olga Hutson inquired about a promotion but “was told repeatedly that it was not

15 possible . . . to receive a promotion to Level 65 because almost no one made it to that

16 level.” (Hutson Decl. (Dkt. # 240) ¶ 5.) But, while she remained at a Level 64 for her

17 six-year tenure, Microsoft promoted several men to Level 65. (Id.) Suzanne Sowinska,

18 while participating as a manager in the Calibration Process, noticed that women were

19 “disadvantaged compared to men with no greater qualifications.” (Sowinska Decl. (Dkt.

20 # 245) ¶ 5.) Male employees’ projects were “valued more highly than similar projects

21 managed by women . . . even when the technical difficulty and value to the company was

22 greater for the women’s projects.” (Id.)

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1

Moreover, the nine declarants describe Microsoft’s culture of hostility towards

2 women, leading female employees to feel undervalued and marginalized. Many describe

3 observations of sexual harassment, including inappropriate comments regarding female

4 employees’ looks, figures, or clothing; groping and other unwanted touching; and other

5 characteristics of a “male-dominated culture” within which female employees struggled

6 to operate. (Sowinska Decl. ¶ 7; see also, e.g., Warren Decl. (Dkt. # 248) ¶ 7 (describing

7 a Microsoft party with “scantily clad women dancing on tables”); Miller Decl. ¶ 8

8 (describing inappropriate comments regarding her clothing, unwanted touching, and

9 manager inquiries into her marriage status).) Some were harassed themselves. (See, e.g.,

10 Boeh Decl. ¶ 7.) Mary Smith described how a male colleague “screamed and cursed . . .

11 and threatened to kill [her].” (Smith Decl. ¶ 8.) When she informed her manager, he

12 acknowledged that the male colleague was “sexist” but did nothing further. (Id.)

13

Almost all of the female employees recount how Microsoft excluded them from

14 business opportunities and applied double-standards—rooted in gender stereotypes about

15 behavior—to dictate how female employees should behave. (See, e.g., Vaughn Decl.

16 (Dkt. # 247) ¶ 6.) For instance, Jennifer Underwood states Microsoft did not give her the

17 staff, support, and funding to attend industry events while male peers received

18 “significant financial and administrative support to fulfill the same job duties.”

19 (Underwood Decl. (Dkt. # 246) ¶ 7.) Microsoft allegedly downgraded Ms. Sowinska’s

20 performance rating in the Calibration Process because she “did not smile enough.”

21 (Sowinska Decl. ¶ 7.) Kristen Warren observed that “men are praised for exhibiting

22 strong opinions and being assertive, while women are admonished for the same

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1 behavior.” (Warren Decl. ¶ 7.) In fact, managers told her to “control [her] ‘emotions’

2 after [she] expressed opinions in meetings, even though men making similar comments

3 did not receive negative feedback.” (Id.)

4

None of the female employees believes that the HR complaint process is effective.

5 Many complained to HR regarding their lack of promotions (Vaughn Decl. ¶ 7), their

6 performance ratings (Dove Decl. ¶ 9), or their inability to secure necessary resources

7 (Underwood Decl. ¶ 9). HR allegedly responded that there was nothing it could do. (See,

8 e.g., Vaughn Decl. ¶ 7.) Other women complained of their treatment upon returning from

9 maternity leave, but HR failed to respond or follow up. (See Albert Decl. ¶ 8; Boeh Decl.

10 ¶ 8.) HR similarly did not investigate complaints regarding threats or harassment. (See

11 Smith Decl. ¶ 9.) When HR did follow up, female employees were dissatisfied with the

12 ensuing investigation. For instance, when investigating Ms. Hutson’s complaint, HR

13 acknowledged that the manager “acted inappropriately” but nonetheless found no

14 violation of Microsoft’s Anti-Harassment/Anti-Discrimination policy. (Hutson Decl.

15 ¶ 6.) The female employees also state that female complainants face retaliation. Ms.

16 Smith recounts that after complaining about threats and hostility from male colleagues,

17 Microsoft assigned her responsibilities outside the normal scope of her position. (Smith

18 Decl. ¶ 10.)

19 E. Procedural History

20

Plaintiffs filed their original complaint on September 16, 2015, challenging

21 Microsoft’s continuing policy, pattern, and practice of sex discrimination against female

22 employees in technical and engineering roles. (Compl. (Dkt. # 1) ¶ 1.) Plaintiffs

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1 amended their complaint on October 27, 2015 (see FAC (Dkt. # 8)), and Microsoft filed a

2 motion to dismiss for failure to state a claim, or alternatively, a motion for a more definite

3 statement (MTD (Dkt. # 23) at 1). The court granted in part and denied in part

4 Microsoft’s motion. (See MTD Order (Dkt. # 52) at 2.) The court denied the motion as

5 to Plaintiffs’ disparate treatment claims and Ms. Moussouris’s retaliation claims (id. at

6 20, 24-28) but dismissed, with leave to amend, Plaintiffs’ disparate impact claims for

7 failing to allege “any facts from which the court can plausibly infer the allegedly

8 offending employment practice causes the alleged disparate impact” (id. at 21, 29).

9

Plaintiffs amended the complaint on April 6, 2016. (See SAC.) This second

10 amended complaint described in detail the Calibration Process (id. ¶¶ 27-32, 37-40) and

11 asserted that Microsoft systematically undervalued female technical employees in this

12 process because female employees received, on average, lower rankings despite equal or

13 better performance (id. ¶ 34). Microsoft again moved to dismiss Plaintiffs’ disparate

14 impact claims. (See 2d MTD (Dkt. # 62).) This time, the court denied the motion, noting

15 that Plaintiffs sufficiently identified a challenged employment practice (2d MTD Order

16 (Dkt. # 134) at 9) and alleged sufficient facts for the court to draw the reasonable

17 inference that Microsoft’s Calibration Process led to arbitrary differentiations between

18 employees and disparately impacted women (id. at 10).

19

The Plaintiffs subsequently filed their motion for class certification. (See MCC.)

20 Both parties then submitted motions to exclude various experts proffered in support of

21 and in opposition to class certification. (See Farber MTE (Dkt. # 362); Saad MTE (Dkt.

22 # 364); Young MTE (Dkt. ## 367 (sealed), 368 (redacted)).) The court denied

ORDER - 22

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1 Microsoft’s motion to exclude the expert opinion of Dr. Henry S. Farber and the majority

2 of Plaintiffs’ motion to exclude the expert opinion of Dr. Ali Saad. (MTE Order (Dkt.

3 # 467) at 16-23, 29-33.) However, the court excluded (1) Dr. Saad’s “business need”

4 word search analysis because it was not the product of reliable principles and methods

5 (id. at 26-28); and (2) Rhoma Young’s evaluation of the ERIT process because it was not

6 based on sufficient facts or data (id. at 33-39). The court now considers the class

7 certification motion.

8

III. ANALYSIS

9

Plaintiffs move to certify a nationwide class of female Microsoft employees,

10 leveled 59 to 67, who worked in the Engineering and/or I/T Operations Professions from

11 September 16, 2012, to the present. (MCC at 1.) All class members have a claim of

12 discrimination in pay, and class members in Levels 60 to 64 have claims for

13 discrimination in promotion. (Id.) Plaintiffs seek certification under Federal Rule of

14 Civil Procedure 23(b)(2) for their injunctive relief claims, Rule 23(b)(3) for their

15 damages claims, and Rules 23(b)(2), 23(b)(3), and/or 23(c)(4) for certification of the

16 liability phase. (Id. at 2-3); see Fed. R. Civ. P. 23(b)-(c).

17

Microsoft not only opposes class certification on the merits but also seeks to strike

18 portions of Plaintiffs’ reply brief and accompanying documents. (See Resp.; Surreply.)

19 The court addresses the surreply before moving to the class certification issue.

20 A. Microsoft’s Surreply

21

Pursuant to Local Civil Rule 7(g), Microsoft moves to strike the following

22 materials connected with Plaintiffs’ reply: (1) legal argument in the declaration of

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1 Plaintiffs’ counsel; (2) Dr. Ryan’s reply report; and (3) a footnote in the reply that makes

2 allegedly unsupported allegations regarding pay discrepancies. (Surreply at 1.) The

3 court addresses each in turn.

4

First, Microsoft challenges as improper legal argument Plaintiffs’ chart entitled

5 “Microsoft’s alleged variation in the pay and promotion process is not material and/or is

6 not supported by the evidence it cites to.” (See Reply Shaver Decl. (Dkt. ## 343 (sealed),

7 359-2 (redacted)) ¶ 4, Ex. A (“Reply Chart”) at 1.) In Plaintiffs’ reply, they argue that

8 “Microsoft offers a few immaterial variations in how pay or promotion decisions were

9 internally documented or communicated across groups.” (Reply (Dkt. ## 342 (sealed),

10 359-1 (redacted)) at 3.) After addressing one example, Plaintiffs point the court to their

11 chart that addresses how the remaining variations are “immaterial and/or unsupported by

12 the record.” (Id.) For instance, in regards to Microsoft’s assertion that each team

13 handled calibration meetings differently, Microsoft relies in part on deposition testimony

14 regarding how HR members varied in their documentation of calibration meetings.

15 (Reply Chart at 7.) Plaintiffs state in their chart that the “presence or absence of other

16 HR team members in the room, or the identity of the person documenting common

17 information, are irrelevant to the common criteria challenged in this action.” (Id.)

18

The court agrees that Plaintiffs’ chart should be stricken as improper legal

19 argument outside the court-approved page limit. (See id. at 1-2.) “Declarations . . .

20 should not be used to make an end-run around the page limitations . . . by including legal

21 arguments outside of the briefs.” King Cty. v. Rasmussen, 299 F.3d 1077, 1082 (9th Cir.

22 2002) (citing Fed. R. Civ. P. 56(e)). Plaintiffs’ chart, while couched in factual assertions,

ORDER - 24

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1 contains significant argument regarding why several of Microsoft’s assertions are

2 erroneous. (See, e.g., Reply Chart at 7.) Such argument goes beyond what is appropriate

3 for a declaration. See Fed. R. Civ. P. 56(e); see also Sierra Club v. BNSF Ry. Co.,

4 No. C13-0976JCC, 2017 WL 3141899, at *1 (W.D. Wash. July 25, 2017) (striking legal

5 arguments in declarations that were “an attempt to circumvent the reply brief page

6 limits”). Thus, the court will not consider Plaintiffs’ chart in its determination of the

7 class certification motion.4

8

Second, Microsoft seeks to strike Dr. Ryan’s reply report as an improper rebuttal

9 report. The court agrees. Plaintiffs offer Dr. Ryan’s “Reply Expert Report” to “respond

10 to the portions of Microsoft’s [response] . . . that address the topics of [her original

11 report].” (Ryan Reply (Dkt. # 359-11) ¶ 1.) But rebuttal reports are proper only “‘to

12 contradict or rebut evidence on the same subject matter’ from an opposing party’s

13 expert.” Theoharis v. Rongen, No. C13-1345RAJ, 2014 WL 3563386, at *1 (W.D.

14 Wash. July 18, 2014) (quoting Fed. R. Civ. P. 26(a)(2)(D)(ii)). Plaintiffs readily point

15 out that Microsoft “leaves Dr. Ryan’s opinions unrebutted, offering no expert opinion

16 opposing hers.” (Reply at 4.) Thus, Dr. Ryan’s additional report “attempts to augment

17 //

18 //

19

4 Microsoft also seeks to strike paragraph 5 of Plaintiffs’ counsel’s declaration, in which

she attests to the law firm Lane Powell’s involvement as counsel for both class member

20 declarants and Microsoft. (See Surreply at 2 (citing Reply Shaver Decl. ¶ 5).) This paragraph sets out factual allegations regarding Lane Powell’s representation of putative class members

21

during their depositions. (See Shaver Decl. ¶ 5, Ex. B (copies of Lane Powell engagement letters).) These factual allegations are appropriate for a declaration. Indeed, Microsoft does not

22

identify how this paragraph constitutes legal argument in its one-sentence argument on this point. (See Surreply at 2.) Thus, the court declines to strike the paragraph.

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1 [Plaintiffs’] reply by attacking a legal argument from [Microsoft’s] counsel.”5 See

2 Johnson v. Hartford Cas. Ins. Co., No. 15-cv-04138-WHO, 2017 WL 2224828, at *3

3 (N.D. Cal. May 22, 2017). As Plaintiffs’ counsel conceded in oral argument, such use of

4 a rebuttal report is improper.6 Accordingly, the court strikes Dr. Ryan’s reply report and

5 does not consider it further.

6

Third, and lastly, Microsoft seeks to strike a footnote in Plaintiffs’ reply that

7 makes pay discrepancy allegations. (Surreply at 3.) Specifically, Plaintiffs state that

8 “[c]lass member[] witnesses have been paid less than comparable male coworkers” but

9 provide no citation for that statement. (See Reply at 17 n.35.) Microsoft contends that

10 the court should strike this unsupported allegation. The court disagrees. The court may

11 disregard arguments of counsel in briefing if they are “wholly unsupported” or if they

12 “conflict[] with the available evidence.” Wilbur v. City of Mount Vernon,

13 No. C11-1100RSL, 2012 WL 600727, at *2 (W.D. Wash. Feb. 23, 2012). However,

14 arguments can also be based on “common sense inferences or limited/equivocal

15 //

16 //

17
5 Even though Dr. Ryan’s reply report mentions Ms. Young’s evaluation of ERIT, the 18 reply report centers on rebutting Microsoft’s arguments—not on Ms. Young’s expert report. For
example, Dr. Ryan addresses how Microsoft witnesses support her conclusions (Ryan Reply 19 Rep. ¶ 3) and how Microsoft’s assertions regarding training are inaccurate (id. ¶ 4). Indeed, Dr.
Ryan’s reply report only briefly mentions Ms. Young’s report. (See id. ¶ 4.b.) Thus, Dr. Ryan’s 20 reply report is not a rebuttal of Ms. Young’s report.

21

6 This is true even though the report is labeled as a “reply report.” See K&N Eng’g, Inc.

v. Spectre Performance, No. EDCV 09-1900CAP (DTBx), 2011 WL 13131157, at *9 (C.D. Cal.

22

May 12, 2011) (excluding an expert’s reply report because neither the scheduling order nor the Federal Rules of Civil Procedure “permit ‘reply’ reports”).

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1 evidence.” Id. Thus, Plaintiffs’ lack of citation for their statement may affect the weight

2 afforded, but it is unnecessary to strike the footnote.7 See id.

3

Accordingly, the court strikes the chart attached to Plaintiffs’ counsel’s declaration

4 and Dr. Ryan’s reply report. The remainder of the reply stands as filed.

5 B. Class Certification Motion

6

Having determined the materials properly before the court, the court now turns to

7 the Plaintiffs’ motion for class certification. “The class action is ‘an exception to the

8 usual rule that litigation is conducted by and on behalf of the individual named parties

9 only.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v.

10 Yamasaki, 442 U.S. 682, 700-01 (1979)). “Class certification is governed by Federal

11 Rule of Civil Procedure 23.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011).

12 Under Rule 23(a), the party seeking certification must first demonstrate that:

13

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

14

(3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and

15

(4) the representative parties will fairly and adequately protect the interests

of the class.

16

Fed. R. Civ. P. 23(a). Rule 23(a)’s four subparts are generally referred to as the

17

requirements of numerosity, commonality, typicality, and adequacy of representation.

18

Certification is proper “only if ‘the trial court is satisfied, after a rigorous analysis, that

19

20 7 Moreover, contrary to Microsoft’s contentions (see Surreply at 3), evidence does not

21

need to be admissible to be considered at the class certification stage, see Sali v. Corona Reg’l Med. Ctr., --- F.3d ----, 2018 WL 2049680, at *5 (9th Cir. May 3, 2018). Thus, unlike the

22

summary judgment cases Microsoft cites (see Surreply at 3), the court is not limited to considering only admissible evidence.

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1 the prerequisites of Rule 23(a) have been satisfied.’” Dukes, 564 U.S. at 350-51 (quoting

2 Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)).

3

In addition to meeting the Rule 23(a) prerequisites, the action must also fall into

4 one of three categories under Rule 23(b). Id. at 349. For their injunctive relief claims,

5 Plaintiffs rely on Rule 23(b)(2), which applies when “the party opposing the class has

6 acted or refused to act on grounds that apply generally to the class, so that the final

7 injunctive relief or corresponding declaratory relief is appropriate respecting the class as

8 a whole.” Fed. R. Civ. P 23(b)(2); (see MCC at 36-38.) “[T]he key to the (b)(2) class is

9 the indivisible nature of the injunctive or declaratory remedy warranted.” Ellis v. Costco

10 Wholesale Corp., 657 F.3d 970, 987 (9th Cir. 2011) (“Ellis I”) (internal quotation marks

11 omitted) (quoting Dukes, 564 U.S. at 360). Plaintiffs additionally rely on Rule 23(b)(3)

12 for their damages claim. (MCC at 38-43.) Rule 23(b)(3) applies when a “question of law

13 or fact common to class members predominate over any questions affecting only

14 individual members, and that a class action is superior to other available methods for

15 fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

16

“[S]ometimes it may be necessary for the court to probe behind the pleadings

17 before coming to rest on the certification question.” Dukes, 564 U.S. at 350 (internal

18 quotation marks omitted) (quoting Falcon, 457 U.S. at 160). “The class determination

19 generally involves considerations that are enmeshed in the factual and legal issues

20 comprising the plaintiff’s cause of action.” Id. at 351 (internal quotation marks omitted)

21 (quoting Falcon, 457 U.S. at 160). Nevertheless, at this stage, the court “is merely to

22 decide a suitable method of adjudicating the case” and “should not turn class certification

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1 into a mini-trial on the merits.” Edwards v. First Am. Corp., 798 F.3d 1172, 1178 (9th

2 Cir. 2015) (internal quotation marks omitted) (quoting Ellis I, 657 F.3d at 983 n.8).

3

“The party seeking class certification bears the burden of establishing that the

4 proposed class meets the requirements of Rule 23.” Id. at 1177. “A party seeking class

5 certification must affirmatively demonstrate his compliance with [Rule 23]—that is, he

6 must be prepared to prove that there are in fact sufficiently numerous parties, common

7 questions of law or fact, etc.” Dukes, 564 U.S. at 351; Behrend, 569 U.S. at 33 (requiring

8 the party seeking certification to affirmatively demonstrate compliance with Rule 23

9 “through evidentiary proof”). The court may grant certification only after “a rigorous

10 analysis . . . [determining] that the prerequisites of Rule 23(a) have been satisfied.”

11 Dukes, 564 U.S. at 350-51. If a court is not fully satisfied that the requirements of Rules

12 23(a) and (b) have been met, it should deny certification. Falcon, 457 U.S. at 161.

13

Of the four Rule 23(a) prerequisites, Microsoft challenges commonality,

14 typicality, and adequacy.8 (See Resp. at 15-41.) The court concludes that Plaintiffs have

15 not affirmatively demonstrated that common questions of law or fact exist across the

16 proposed class; that Plaintiffs’ claims are typical of the absent class members’ claims; or

17 that Plaintiffs will fairly and adequately protect the interests of the class. The court

18 addresses each prerequisite in turn.

19 //

20

21

8 Microsoft does not challenge numerosity, and the court finds that the Plaintiffs’

proposed class, consisting of over 8,000 putative members, satisfies the numerosity requirement.

22

See Dunakin v. Quigley, 99 F. Supp. 3d 1297, 1326-27 (W.D. Wash. 2015) (accepting that 40 or more class members will generally satisfy numerosity).

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1

1. Commonality

2

As is true in many Title VII class actions, the “crux of this case is commonality.”

3 See Dukes, 564 U.S. at 349. Rule 23(a)(2) requires a plaintiff to show that “there are

4 questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The

5 requirements of commonality have been “construed permissively”; not all questions of

6 fact and law need to be common. Ellis I, 657 F.3d at 981. However, because any

7 competently crafted class complaint “literally raises common ‘questions,’” not every

8 common question suffices. Dukes, 564 U.S. at 349; Ellis I, 657 F.3d at 981. For

9 instance, reciting questions such as “Do our managers have discretion over pay” or “Is

10 that an unlawful employment practice” are insufficient to obtain class certification.

11 Dukes, 564 U.S. at 349. Instead, Plaintiffs’ claims must “depend upon a common

12 contention” that is “of such a nature that it is capable of classwide resolution—which

13 means that determination of its truth or falsity will resolve an issue that is central to the

14 validity of each one of the claims in one stroke.” Id. at 350. Put another way, Plaintiffs

15 must pose a “common question” that “will connect many individual promotional

16 decisions to their claim for class relief” and “produce a common answer to the crucial

17 question why was I disfavored?” Ellis I, 657 F.3d at 981 (internal quotation marks

18 omitted) (quoting Dukes, 564 U.S. at 352).

19

At the outset, the court notes that from the time of their briefing to oral argument,

20 Plaintiffs’ theory and arguments surrounding commonality have shifted. In their briefing,

21 Plaintiffs make no distinction between their pay and promotion claims, arguing that

22 Microsoft’s “common but unvalidated criteria,” “set of common procedures,” and the

ORDER - 30

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1 “final approval by just four EVPs” cabined the discretion that lower managers exercised

2 in both pay and promotion determinations. (See Reply at 12-13; see also MCC at 32-34

3 (making no distinction between pay and promotion in their argument on commonality).)

4 During oral argument, however, Plaintiffs presented a new theory that suggested different

5 analyses for pay and promotion: They maintained that the use of Stock Levels removed

6 discretion for pay determinations whereas the common criteria and procedures cabined

7 discretion for promotion determinations.9 “It is inappropriate to present a new argument

8 at oral argument and deny the [c]ourt and opposing counsel a chance to review the merits

9 of such an argument.” Value Home Auctions, Inc. v. X-Wire Techs., Inc., No. SACV

10 10-0153 AG (RNBx), 2011 WL 13225021, at *4 (C.D. Cal. Mar. 23, 2011).

11 Nonetheless, the court considers all of Plaintiffs’ arguments and addresses Plaintiffs’

12 disparate impact and disparate treatment claims in turn.10

13 //

14 //

15

9 Tellingly, when asked where in their briefing Plaintiffs made this argument regarding

16

Stock Level, Plaintiffs pointed only to the briefing’s background section. (See MCC at 8-9 (justifying Dr. Farber’s failure to control for Stock Level in his statistical analysis); id. at 12

id. at 13-16 (citing employee complaints about 17 Stock Level).) Nowhere in the cited pages do Plaintiffs present Stock Level as a common

corporate policy that eliminates the discretion surrounding pay determinations.

18

10 The court recognizes that the distinction between a disparate impact claim and a

19 disparate treatment claim, for commonality purposes, is often illusory because the “actual

argument in support of class certification ultimately makes little distinction between the two.”

20 Dukes v. Wal-Mart Stores, Inc., 964 F. Supp. 2d 1115, 1119 (N.D. Cal. 2013) (“Dukes II”); see also Jones v. Nat’l Council of Young Men’s Christian Ass’ns, 34 F. Supp. 3d 896, 909 (N.D. Ill.

21

2014) (recognizing overlap in the analysis of disparate impact and disparate treatment claims because of the “common cause for the injuries claimed”). Nonetheless, the court addresses each

22

claim separately to fully flesh out its rationale, with the understanding that the analysis for the two intersects to some degree.

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1

a. Disparate Impact Commonality

2

Disparate impact claims under Title VII challenge “a facially neutral policy or

3 practice that causes a disparate impact on a protected group, even if the employer has no

4 intent to discriminate.” Williams v. Boeing Co., 225 F.R.D. 626, 634 (W.D. Wash. 2005).

5 To establish a prima facie case of disparate impact, plaintiffs must: (1) show a significant

6 disparate impact on a protected class or group; (2) identify the specific employment

7 practices at issue; and (3) show a causal relationship between the challenged practices

8 and the disparate impact. Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1190 (9th Cir.

9 2002). If plaintiffs establish a prima facie case, the burden shifts to the employer to show

10 that its challenged practices are consistent with business necessity and that there was no

11 less discriminatory alternative. Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 505

12 (N.D. Cal. 2012) (“Ellis II”).

13

The court first reviews the comprehensive legal landscape governing commonality

14 for disparate impact claims implicating managerial discretion. The court then applies that

15 law to the circumstances here.

16

i. Law Governing Disparate Impact Commonality

17

Wal-Mart Stores, Inc. v. Dukes directly addressed the issue of commonality in a

18 Title VII gender discrimination case that challenged the discretion exercised by

19 individual supervisors over pay and promotion matters. See 564 U.S. at 344-45. The

20 Dukes plaintiffs alleged that “local managers’ discretion over pay and promotions [was]

21 exercised disproportionately in favor of men, leading to an unlawful disparate impact on

22 female employees.” Id. at 344-45. Plaintiffs’ theory of commonality was that

ORDER - 32

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1 Wal-Mart’s “strong and uniform ‘corporate culture’ permits bias against women to infect

2 . . . the discretionary decisionmaking of each one of Wal-Mart’s thousands of

3 managers—thereby making every woman at the company the victim of one common

4 discriminatory practice.” Id. at 345.

5

The Supreme Court observed that “[t]he only corporate policy that the plaintiffs’

6 evidence convincingly establishes is Wal-Mart’s ‘policy’ of allowing discretion by local

7 supervisors over employment matters.” Id. at 355. Such a policy of discretion is, “[o]n

8 its face . . . just the opposite of a uniform employment practice that would provide the

9 commonality needed for a class action; it is a policy against having uniform employment

10 practices.” Id. Although the Court recognized that in appropriate cases, granting

11 unlimited discretion to lower-level supervisors could be the basis of Title VII liability,

12 that possibility of liability “does not lead to the conclusion that every employee in a

13 company using a system of discretion has such a claim in common.” Id. In fact, the

14 Court surmised, the exact opposite is likely true:

15

[L]eft to their own devices most managers in any corporation—and surely

most managers in a corporation that forbids sex discrimination—would

16

select sex-neutral, performance-based criteria for hiring and promotion that

produce no actionable disparity at all. Others may choose to reward various

17

attributes that produce disparate impact—such as scores on general aptitude

tests or educational achievements. And still other managers may be guilty

18

of intentional discrimination that produces a sex-based disparity.

19 Id. Because “demonstrating the invalidity of one manager’s discretion will do nothing to

20 demonstrate the invalidity of another’s,” a party basing commonality on such a system of

21 discretion “will be unable to show that all the employees’ Title VII claims will in fact

22 depend on the answers to common questions.” Id. at 355-56.

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1

But Dukes did not entirely foreclose the ability to establish commonality when the

2 employer operates under a policy allowing discretion. See Ellis II, 285 F.R.D. at 518

3 (noting that some discretion “does not in and of itself preclude class certification”);

4 accord Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113-14 (4th Cir. 2013)

5 (describing how a disparate impact claim challenging discretion may satisfy commonality

6 post-Dukes). Plaintiffs challenging a system of discretion must identify “a common

7 mode of exercising discretion that pervades the entire company.” Dukes, 564 U.S. at

8 356. In other words, when plaintiffs wish to challenge numerous employment decisions

9 at once, they must point to “some glue holding the alleged reasons for all those decisions

10 together.” Id. at 352. Otherwise, it would be “quite unbelievable that all managers

11 would exercise their discretion in a common way without some common direction.” Id.

12 at 356. The Court determined that both the plaintiffs’ aggregated statistical evidence and

13 anecdotal evidence fell “well short” of indicating a “common direction” from upper

14 management, and thus, the plaintiffs failed to demonstrate the existence of common

15 issues. Id. at 356-58.

16

On remand, the Dukes plaintiffs narrowed their class significantly, from a

17 nationwide class to three regional classes, all within California. Dukes II, 964 F. Supp.

18 2d at 1118-19. They additionally identified several corporate policies, such as a “tap on

19 the shoulder” system for promotions and company-wide guidelines for pay decisions,

20 which allegedly provided “common direction.” Id. at 1119. For instance, plaintiffs

21 alleged that Wal-Mart limited the managers’ discretion by requiring them to consider

22 various criteria, such as “communication skills” or “ability to learn.” Id. at 1126. The

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1 district court rejected the plaintiffs’ characterization. The court concluded that the

2 identified criteria “were so vague or numerous that they imposed no real constraints,” and

3 additionally, Wal-Mart did not prohibit managers from considering other factors of their

4 own choosing. Id.

5

Thus, although plaintiffs identified some company-wide policies, the court noted

6 that the plaintiffs were not challenging the policies themselves or the faithful application

7 of those policies; instead, at its core, they continued to challenge the “broad discretion

8 managers retain in applying the vague criteria.” Id. at 1126-27. Put another way, the

9 plaintiffs’ argument still boiled down to the theory that “managers, who were left without

10 meaningful guidance in applying the impossibly vague criteria, fell back on their own

11 stereotyped views of women in making pay and promotion decisions.” Id. at 1127.

12 While this may be “a perfectly logical theory” for liability, the court observed that it

13 “leaves [p]laintiffs right back where they started: challenging Wal-Mart’s practice of

14 delegating discretion to local managers, which the Supreme Court specifically held was

15 not a specific employment practice supplying a common question sufficient to certify a

16 class.” Id.

17

Like Dukes II, other courts addressing similar challenges have concluded that

18 commonality is lacking. See, e.g., Tabor v. Hilti, Inc., 703 F.3d 1206, 1229 (10th Cir.

19 2013) (recognizing that courts “have generally denied certification when allegedly

20 discriminatory policies are highly discretionary”). In Jones v. National Council of Young

21 Men’s Christian Associations, the plaintiffs argued that the company did not have

22 “effective oversight” and thus allowed local managers’ exercise of discretion to result in

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1 adverse outcomes for the protected class. 34 F. Supp. 3d at 905. Plaintiffs attempted to

2 “downplay[] the degree of discretion” by describing the entire evaluation and promotion

3 process as a mandatory company-wide policy. Id. at 904. The Jones court rejected this

4 attempt to “increas[e] the level of abstraction in defining the policy.” Id.; see id. at 905

5 (observing that at the level of abstraction the plaintiffs propose, “every company—even

6 Wal-Mart—could be said to have a company-wide policy”). Instead, the court

7 characterized the plaintiffs’ challenge to oversight as “precisely the argument held to be

8 inadequate to support class certification in [Dukes].” Id.; see also Bolden v. Walsh

9 Constr. Co., 688 F.3d 893, 898 (7th Cir. 2012) (“[Dukes] tells us that local discretion

10 cannot support a company-wide class no matter how cleverly lawyers may try to

11 repackage local variability as uniformity.”).

12

Accordingly, post-Dukes, the crux of the commonality inquiry for a system of

13 discretion lies in whether lower-level supervisors operate under “a common mode of

14 exercising discretion”—put differently, whether some company-wide policy provides

15 sufficient “common direction” such that individual exercises of discretion nonetheless

16 produce a common answer to the question “why was I disfavored.” See 564 U.S. at 352,

17 356 (emphasis removed); see also Ross v. Lockheed Martin Corp., 267 F. Supp. 3d 174,

18 198 (D.D.C. 2017) (requiring the plaintiffs to demonstrate that “all managers would

19 exercise their discretion in a common way”). Courts considering the issue analyze

20 several factors in determining whether a common mode of exercising discretion pervades

21 the entire company. Those factors include: (1) the nature of the purported class; (2) the

22 //

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1 process through which discretion is exercised; (3) the criteria governing the discretion;

2 and (4) the involvement of upper management.

3

First, the nature of the purported class is, at the very least, relevant. Although

4 class size “has no per se bearing on commonality,” courts recognize that “when the

5 claims focus in part on the exercise of managerial discretion, it is reasonable to suspect

6 that the larger the class size, the less plausible it is that a class will be able to demonstrate

7 a common mode of exercising discretion.” Ellis II, 285 F.R.D. at 509. Thus, a “more

8 centralized, circumscribed environment generally increases . . . the consistency with

9 which managerial discretion is exercised.” Brown v. Nucor Corp., 785 F.3d 895, 910

10 (4th Cir. 2015); see also Rollins v. Traylor Bros., Inc., No. C14-1414JCC, 2016 WL

11 258523, at *7 (W.D. Wash. Jan. 21, 2016), abrogated on other grounds, 2016 WL

12 5942943 (W.D. Wash. May 3, 2016). In Brown, for example, the proposed class

13 consisted of about 100 putative members, all located in a single facility. Id. at 910. For a

14 “localized, circumscribed class” of that size, a policy of subjective, discretionary

15 decision-making can “more easily form the basis of Title VII liability.” Id. at 916; see

16 also Chen-Oster v. Goldman, Sachs & Co., --- F.R.D. ----, 2018 WL 1609267, at *2

17 (S.D.N.Y. Mar. 30, 2018) (approving class of 1,762 to 2,300 people holding two job

18 positions). On the other hand, for a nationwide class, “proving a consistent exercise of

19 discretion will be difficult, if not impossible.” Brown, 785 F.3d at 916.

20

Second, courts look to what procedures govern the discretion and analyze the

21 rigidity of the process through which discretion is exercised. Simply showing a process

22 in which discretion would be exercised is insufficient to establish commonality. See

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1 Valerino v. Holder, 283 F.R.D. 302, 313 (E.D. Va. 2012). In Valerino, the company set

2 up an evaluation and promotions process in which employees underwent several phases

3 of evaluation by local supervisors. Id. at 304-07. Plaintiffs argued that this

4 company-wide promotion process created a common mode of exercising discretion. Id.

5 at 313. The court disagreed. Although the court acknowledged that the company “set[]

6 up a structure,” that structure alone was insufficient because the process merely laid out

7 “points at which particular people exercise discretion.” Id. The court remarked that

8 “[c]ertainly every application is subject to that structure, but so was every applicant in

9 Wal-Mart subject to a [promotions] structure.” Id. at 313-14. Nothing about the process

10 constrained the exercise of discretion; thus, “[t]hat discretion itself cannot be said to be

11 the same or ‘common.’” Id. at 313.

12

In contrast, a structure that imposes specific requirements, beyond simply laying

13 out general steps in a process, may show sufficient common direction. The Ellis II court

14 noted that the company not only had a single procedure that controlled the people

15 generally involved and the process by which they made decisions, but the company also

16 imposed several non-negotiable requirements, such as mandatory promotion from within

17 the company and a prohibition on posting job openings. See 285 F.R.D. at 511. Those

18 requirements—implemented across the company—distinguished the discretion at issue in

19 Ellis II from the unfettered discretion in Dukes. See id. at 509; see also McReynolds v.

20 Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 490 (7th Cir. 2012) (holding

21 that two company-wide policies that required the managers to allow certain practices,

22 //

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1 rather than leaving managers to make the decision themselves, sufficiently restrained

2 discretion).

3

Third, courts consider the criteria that govern the discretionary decisions. Again,

4 whether a set of criteria creates a common mode of exercising discretion depends on the

5 rigidity of that criteria. Subjective criteria, prone to different interpretations, generally do

6 not provide common direction. See, e.g., Ross, 267 F. Supp. 3d at 198. In Ross, “[t]he

7 mere fact that all . . . supervisors used the same allegedly ill-defined numerical rubric . . .

8 says nothing about how individual supervisors exercised what discretion was left to

9 them.” Id. Similarly, in Jones, managers had to consider “amorphous concepts,” such as

10 “the organization’s strategy, the employee’s role in the organization, and the market

11 value of the employee’s job,” as criteria for determining pay and promotions. 34 F.

12 Supp. 3d at 906. “That supervisors evaluate candidates according to specific, but

13 subjective factors . . . does not make the decisions produced by the process meaningfully

14 less discretionary.” Id.

15

On the other hand, objective criteria or criteria commonly understood throughout

16 the company may establish a common mode of exercising discretion. In Ellis II, the

17 court observed that most of the criteria, such as the applicant’s ability to relocate or an

18 applicant’s prior experience in the position, was objective and thus not open to

19 interpretation by individual decision-makers. See 285 F.R.D. at 514. The remaining

20 criteria, while subjective, carried definitions within the company that were uniformly

21 understood. See id. For instance, the CEO attested that everyone in the company had a

22 “pretty clear understanding” of the company criteria and denied that this criteria “varied

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1 based on the whims of local managers.” Id. Thus, because even the subjective criteria

2 was interpreted in a uniform manner, the Ellis II court found that the criteria for

3 promotion differed from that in Dukes where “managers appl[ied] their own subjective

4 criteria when selecting candidates.” Id. at 518.

5

Fourth, and lastly, the involvement of top management in the discretionary

6 decision-making is a key consideration. See Dukes, 564 U.S. at 350 (suggesting that

7 commonality may be satisfied if the class were limited to one supervisor); Brown, 785

8 F.3d at 916 (recognizing commonality if high-level personnel exercise the discretion at

9 issue). If, for instance, a single decision-maker or a “small, cohesive group” vetted all of

10 the pay and promotion decisions, then the involvement of that one individual, or small

11 group of individuals could constitute a common practice. Jones, 34 F. Supp. 3d at 908.

12 In In re Johnson, “every promotion decision was ultimately made by the Director of [the

13 company at issue].” 760 F.3d 66, 73 (D.C. Cir. 2014). Thus, although different

14 lower-level decision-makers may have injected some subjectivity, the fact that the

15 evaluation process ended with one individual provided the necessary “common

16 contention” capable of class-wide resolution. See id.; see also Chen-Oster, 2018 WL

17 1609267, at *4-5 (certifying a class where the upper management developed the list of

18 eligible candidates and “[u]ltimately, [the] management committee decide[d] who [wa]s

19 promoted”).

20

Similarly, the Ellis II court focused on the “consistent[] and pervasive”

21 involvement of top management in the promotions process. 285 F.R.D. at 511-12.

22 Senior management chose the pool of candidates eligible for promotions by regularly

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1 assessing potential candidates during “floor walks.” Id. at 512-14. The CEO conceded

2 that he gave “[a] lot” of instruction on how to fill the positions, id. at 512, including

3 “personally instruct[ing] his staff as to the criteria” for promotions, id. at 514. Because

4 top management was intimately involved in both designing and executing the promotion

5 process, the court determined that even though lower-level managers had input regarding

6 promotion candidates, top management “actually ma[d]e the decisions.” Id. at 515.

7

But mere approval of decisions by higher-level executives, without more, falls

8 short. When “evidence establishes that the recommendations of lower level . . . managers

9 [are] almost always accepted,” this “limited oversight” does not establish top

10 management as a common denominator. Jones, 34 F. Supp. 3d at 908. In Jones,

11 plaintiffs pointed to “no evidence showing that any member of senior management

12 changed pay or promotion recommendations . . . with any frequency, much less that they

13 did so with [] regularity.” Id. This minimal level of involvement pales in comparison to

14 the level of involvement in Ellis II, and thus, the fact that higher-level personnel

15 approved lower-level managers’ recommendations, standing alone, was insufficient to

16 establish commonality in a system of discretion. See id.

17

ii. Application to Plaintiffs’ Disparate Impact Claims

18

As evident from the above survey, whether commonality exists in a system of

19 discretion is a holistic inquiry that is highly dependent on the facts before the court. See

20 supra § III.B.1.a.i. Applying the law on commonality to the case at hand, the court

21 concludes that Plaintiffs have not shown that their disparate impact claims depend upon a

22 //

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1 common contention, the determination of which will resolve an issue that is central to the

2 validity of each class member’s claims. See Dukes, 564 U.S. at 350.

3

At the outset, the court notes that Plaintiffs, in their briefing, unequivocally

4 predicate their challenge on the discretion allowed under Microsoft’s Calibration

5 Process—precisely the argument that Dukes rejected as “just the opposite of a uniform

6 employment practice that would provide the commonality needed for a class action.” See

7 id. at 355. Plaintiffs repeatedly attack the “lack of standardization” in the Calibration

8 Process, noting that the process was “inconsistent” in terms of who attended, how

9 managers compared employees, and what information managers considered. (MCC at 6.)

10 Plaintiffs criticize how “evaluators were free to weight criteria for pay and promotions”

11 in ways that were unconstrained by Microsoft’s job requirements (id.) and how Microsoft

12 did not exercise sufficient oversight to ensure that managers applied “the same standards

13 consistently with each other” (id. at 7). Indeed, even Dr. Ryan’s critique of the

14 Calibration Process boils down to Microsoft’s lack of guidance, resulting in a lack of

15 uniformity across the process—in other words, unfettered discretion. (See Ryan Rep.

16 ¶¶ 18-20, 26-31, 35-36.)

17

At oral argument, Plaintiffs attempted to distance themselves from the system of

18 discretion they describe in their briefing, arguing for the first time that the use of Stock

19 Levels dictated an employee’s pay, leaving no room for discretionary decision-making.

20 Put differently, Plaintiffs argued that after the managers submit their performance

21 //

22 //

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1 ratings11—which Plaintiffs concede involve discretion—the employee’s Stock Level

2 mandates a certain pay with no discretion involved. But this attempt to divorce pay

3 determinations from discretion is unavailing. It is true that peers were grouped, and thus

4 compared, to others in similar Stock Levels (MCC Docs. at 13), but within those groups,

5 managers still exercised discretion in comparing peers, resulting in various pay

6 determinations, (see, e.g., Resp. Docs. at 55-56). Plaintiffs point to no evidence, and the

7 court is not aware of any in the record, that an employee’s Stock Level eliminates

8 discretion because the Stock Level unequivocally determines one’s pay.12

9

Of course, the fact that Plaintiffs’ challenge centers on discretion does not

10 foreclose commonality. See Ellis II, 285 F.R.D. at 518. But Plaintiffs must show that

11 there is some common mode of exercising discretion that pervades the entire company

12 and ties the alleged reasons for all those individual decisions together. See, e.g., Dukes,

13 564 U.S. at 352. Plaintiffs broadly assert that Microsoft “uses common criteria in a

14 uniform Calibration [P]rocess” but offer little analysis beyond labeling certain processes

15 and criteria as “common.” 13 (See Reply at 4.) Considering the size of the purported

16

17

11 Plaintiffs concede that there is no gender disparity in the performance ratings. (MCC

at 7.)

18

12 Moreover, Plaintiff’s reliance on Stock Levels for pay determinations ultimately circles

19 back to discretion. Even if Stock Levels determine pay, Stock Levels themselves are determined

by promotions. (See Muenchow Decl. ¶ 2 (describing how Microsoft promoted her to higher

20 Stock Levels).) And Plaintiffs admit that promotion decisions, in turn, involve discretion exercised by lower-level managers. Thus, even if women are disproportionately assigned to

21 lower Stock Levels, the disproportionality itself is the result of discretionary decisions.

13 Indeed, in their motion for class certification, Plaintiffs dedicate less than three pages 22 to this critical issue of commonality. (See MCC at 32-34.) The argument is devoid of any

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1 class, the Calibration Process’s role as a mere framework, the subjective criteria set by

2 Microsoft, and the lack of upper management involvement, the court concludes that

3 Plaintiffs fail to identify a specific employment practice supplying a common question

4 sufficient to certify a class.

5

First, Plaintiffs seek to certify a class of more than 8,600 women in various offices

6 across the United States. (MCC at 1, 32.) Although 8,600 is a far cry from the 1.5

7 million in Dukes, 564 U.S. at 342, Plaintiffs’ class is still many times the size of the

8 certified classes in Ellis II, 285 F.R.D. at 509 (700 members), Chen-Oster, 2018 WL

9 1609267, at *2 (about 2,000 members), and Brown, 785 F.3d at 910 (100 members).

10 Moreover, there is no indication that Plaintiffs’ proposed class is “centralized” or

11 “localized.” See Brown, 785 F.3d at 910, 916. Unlike Ellis II—where all class members

12 fell into two “closely related” positions sharing “a uniform job description across the

13 class,” 285 F.R.D. at 509—or Chen-Oster—where class members fell into two positions,

14 2018 WL 1609267, at *2—Plaintiffs’ proposed class covers a myriad of positions,

15 ranging from software engineers to game designers to data scientists, with an even more

16 varied set of responsibilities within those positions (Whittinghill Decl. ¶¶ 21-35; see also

17 id., Ex. C). Indeed, employees in the Engineering and IT Operations Professions fell into

18 more than 8,000 unique positions for the period of time Plaintiffs challenge. (Id. ¶ 36.)

19 And unlike Brown, Plaintiffs’ putative class members were not located in a single facility

20 that shared common spaces. See 785 F.3d at 910. Rather, they are located all over the

21

22

citation to the record and thus fails to identify any Microsoft policy more specific than the “Calibration [P]rocess.” (See id. at 32.)

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1 United States, and even those employees in the Redmond headquarters are scattered

2 across several facilities. (See SAC ¶¶ 2, 22.) Thus, Plaintiffs’ proposed class is more

3 akin to the expansive Duke class than the circumscribed classes in Ellis II, Chen-Oster,

4 and Brown.

5

Second, the procedures Microsoft dictates act more as a framework than as

6 constraints on discretion. Plaintiffs are correct that broadly speaking, all putative class

7 members are subject to the “same, uniform compensation and promotion process.” (See

8 Reply at 2.) That is, all employees, including the putative class members, are first

9 evaluated by their direct managers, then placed in peer groups of similar Stock Levels,

10 and discussed in a broader meeting of managers—whether in a calibration meeting or a

11 people discussion—with the consensus recommendation rolled up the management chain.

12 (See id. at 2-3; Resp. Docs. at 39, 47-50.) But simply pointing out that Microsoft “set[]

13 up a structure” through which all employees are evaluated is insufficient. See Valerino,

14 283 F.R.D. at 313. Like the evaluation and promotion process in Valerino, the process

15 identified by Plaintiffs reveals only various stages or phases, during which individual

16 decision-makers exercised their discretion. See id. at 313-14. Identifying the framework

17 says nothing about whether the discretion itself can “be said to be the same or

18 ‘common.’” See id. at 313.

19

And unlike in Ellis II, where the company imposed requirements on how decisions

20 were made, 285 F.R.D. at 511, the process by which Microsoft managers made decisions

21 was largely left up to those managers. As Plaintiffs point out, it is true they had to hold a

22 meeting. (See Resp. Docs. at 52-53.) But how they ran that meeting, and thus how they

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1 came to their decisions, was entirely discretionary. (See Helf Decl. ¶ 6; Wilson Decl.

2 ¶ 15.) Each meeting leader determined how the discussion would be held, resulting in a

3 “great deal of flexibility around the process and administration of the meeting.” (Parris

4 Decl. ¶ 6, Ex. 4 (“Coleman Dep.”) at 31:19-21.) One group may decide to use physical,

5 color-coded cards to represent each employee. (DeCaprio Decl. ¶ 9.) Another group

6 may utilize a PowerPoint presentation to visually display relevant rating and budgetary

7 information. (Id.) Still another group may dispense with visual props altogether,

8 launching instead into a roundtable discussion. (Id. ¶ 10.) Some groups may discuss

9 clusters of similarly-rated employees at a time; others may only focus on the high and

10 low performers for each manager. (See id. ¶ 14.) Some groups may require consensus

11 amongst the attending managers; others may not. (Id. ¶ 15.)

12

Thus, “increasing the level of abstraction” to the Calibration Process does not alter

13 the flexibility granted to local managers, and nothing about the Calibration Process itself

14 provides the “common direction” necessary to establish that individual managers

15 exercised their discretion in a common way. See Jones, 34 F. Supp. 3d at 904. That

16 there was some structure to the Calibration Process “does not change the fact that the

17 structure reinforced the discretionary nature of the decisionmaking in this area.” See id.

18 at 906. Plaintiffs seem to acknowledge as much, as they challenge the “lack of

19 standardization” in “the specific procedures for discussing and making compensation and

20 promotion decisions.” (MCC at 6.)

21

Third, Microsoft’s general criteria do not sufficiently constrain discretion. Quite

22 the opposite. Microsoft’s benchmarks are subjective and open to many interpretations—

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1 indeed, Microsoft designed the criteria so that managers could adapt it to various

2 employees’ roles. For the calibration meetings, Microsoft offered general definitions of

3 the “what,” “how,” and “proven capability” criteria, as well as the 1-5 numerical rating

4 system. For instance, Microsoft defined the “how” input as “[h]ow results were

5 accomplished for the past fiscal year.” (Resp. Docs. at 55.) But Microsoft specifies that

6 the “degree to which each input factors into the overall assessment will likely vary by

7 role” and that the “[o]verall performance and ratings reflect the environment in which

8 results were achieved,” all of which necessarily differs from team to team. (Id. at 50-51;

9 see also Helf Decl. ¶ 16 (“[T]he criteria used to evaluate individuals’ performance within

10 [different] groups were necessarily different.”).) And even within this general criteria,

11 managers were encouraged to come to their own understanding of “common objectives”

12 and “what good work looked like,” which effectively allowed managers to consider any

13 other criteria as they saw fit. (See DeCaprio Decl. ¶ 8.) Thus, like the “communication

14 skills” or “ability to learn” criteria in Dukes II, Microsoft’s subjective criteria were so

15 vague “that they imposed no real constraints.”14 See 964 F. Supp. 2d at 1126.

16

After Microsoft transitioned from calibration meetings to people discussions, its

17 evaluation criteria became even less concrete: Managers evaluate “the impact [a]

18 particular employee’s performance had on the group and the company.” (See Wilson

19 //

20 14 When asked during oral argument what evidence Plaintiffs had that the “what,” “how,”

21

and “proven capacity” criteria were uniformly understood by lower managers, Plaintiffs pointed to Microsoft’s training on the criteria. But Plaintiffs’ reliance on Microsoft’s training belies their

22

own expert’s evaluation: Dr. Ryan chastised Microsoft’s training as inadequate to provide sufficient guidance. (See Ryan Rep. ¶ 43.) Plaintiffs cannot have it both ways.

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1 Decl. ¶ 23.) Like the “amorphous concepts” in Jones, 34 F. Supp. 3d at 906, it is hard to

2 imagine a criterion more susceptible to individual interpretation than the subjective

3 measure of a person’s “impact.” Unsurprisingly then, managers in people discussions

4 “ha[d] much more latitude” in evaluating an employee’s impact. (Helf Decl. ¶ 35.)

5 Indeed, “any metric can be considered, so long as it is relevant to the employees’

6 impact.” (Id.) Such wide and varied considerations can hardly be said to be commonly

7 understood by all employees. See Ellis II, 285 F.R.D. at 514. Again, Plaintiffs seem to

8 recognize that reality, arguing that “decision makers were able to apply variable

9 standards in making compensation and promotion decisions.” (MCC at 6.)

10

Lastly, Plaintiffs have not shown sufficient involvement by top management.

11 Plaintiffs identify the four EVPs as the final approvers of all pay and promotion decisions

12 and correctly observe that the performance rating recommendations rolled up the ranks.

13 (Reply at 2-3, 12.) But the evidence shows that the upper-level executives “almost

14 always accepted” the recommendations of lower-level managers. See Jones, 34 F. Supp.

15 3d at 908. Microsoft senior management rarely revisited the recommendations made at

16 the discretion of lower-level managers; indeed, it would be “highly unusual” for senior

17 management “to make a change to a rewards recommendation.” (Helf Decl. ¶ 36; see

18 also Shepherd Decl. (Dkt. # 315) ¶ 13 (“[T]he partner-level managers typically approved

19 the individual recommendations made at the lower-level [c]alibration [m]eetings.”);

20 DeCaprio Decl. ¶ 16 (observing that senior leadership will not closely review

21 recommendations for levels below Level 68); Jarvis Decl. (Dkt. # 306) ¶¶ 17-18 (noting

22 //

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1 that there is “typically little movement for recommendations affecting employees in

2 Level 67 roles and below” by the time the process rolls up to the EVP).)

3

Thus, although EVPs approve pay and promotion decisions, their involvement is

4 more akin to the “limited oversight” in Jones, see 34 F. Supp. 3d at 908, than the

5 “consistent[] and pervasive” involvement in Ellis II, see 285 F.R.D. at 511-12. As in

6 Jones, Plaintiffs provide almost no evidence that the EVPs changed pay or promotion

7 recommendations with “any frequency,” much less that they did so with “regularity.”15

8 See 34 F. Supp. 3d at 908. There is additionally no evidence, as there was in Ellis II, that

9 the EVPs “actually make the decisions,” see 285 F.R.D. at 515; the EVPs did not pick the

10 eligible candidates for promotion, conduct floor-walks to assess potential applicants, or

11 personally instruct lower-level managers on how to execute the Calibration Process,16 see

12 id. at 512-14. Accordingly, Plaintiffs’ evidence of the EVPs as a core group who

13 influenced the discretionary decisions falls short.

14

On this issue of whether Plaintiffs have identified a common mode of exercising

15 discretion that pervades Microsoft, Plaintiffs’ expert reports are of no assistance. As

16 discussed above, Dr. Ryan, rather than identifying sufficient common discretion,

17 emphasizes the exact opposite: the “lack of standardization in how factors are evaluated

18 //

19

15 In support of this point, Plaintiffs at oral argument identified only one statement by

Senior HR Manager Shannon Shepherd that she has “seen . . . executive vice presidents modify

20 promotion recommendations” for budgetary reasons. (Shepherd Decl. ¶ 25.) There is no indication that those modifications are regular practice. (See id.)

21

16 Plaintiffs conceded at oral argument that the role upper management played in Ellis II

22

was qualitatively different from the role Microsoft’s upper management played in pay and promotion determinations here.

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1 and the lack of standardization in the process itself.” (See Ryan Rep. ¶ 25; see also Parris

2 Decl. ¶ 15, Ex. 13 (“Ryan Dep.”) at 209:2-213:17 (focusing critique on the managers’

3 freedom to apply and weigh criteria differently).) Indeed, Dr. Ryan’s report resembles

4 that of the plaintiffs’ expert in Dukes, who could not calculate “whether 0.5 percent or 95

5 percent of the employment decisions . . . might be determined by stereotyped thinking.”

6 See 564 U.S. at 354. Such testimony, as the Supreme Court found, could be “safely

7 disregard[ed].” Id.

8

Likewise, Dr. Farber’s aggregate statistical analysis, which purports to establish

9 the disparate impact felt by female employees, sheds no light on whether Microsoft had a

10 company-wide policy constraining the discretion of lower-level managers. (See Parris

11 Decl. ¶ 9, Ex. 7 (“Farber Dep.”) at 264:13-23 (stating that analysis did not touch on the

12 Calibration Process’s role in any identified disparities).) “[S]tatistical

13 correlation cannot substitute for a specific finding of class-action commonality.”

14 Campbell v. Nat’l R.R. Passenger Corp., --- F. Supp. 3d ----, 2018 WL 1997254, at *31

15 (D.D.C. Apr. 26, 2018); see Dukes, 564 U.S. at 357 (“Merely showing that Wal-Mart’s

16 policy of discretion has produced an overall sex-based disparity does not suffice.”).

17 Thus, as in Dukes, even if Dr. Farber’s report conclusively establishes disparities based

18 on gender, “that would still not demonstrate that commonality of issue exists.” See 564

19 U.S. at 357.

20

Indeed, Plaintiffs’ proffered declarations reflect how Microsoft managers did not

21 exercise their discretion in a uniform manner. The declarants concede that, although

22 some managers exercised discretion in a discriminatory manner, others did not. (See,

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1 e.g., Parris Decl. ¶ 18, Ex. 16 (“Underwood Dep.”) at 198:19-199:13 (agreeing that

2 whether a manager discriminated was “event-specific and person-specific” because the

3 choice to discriminate is specific “to that person themselves [sic]”).) Moreover, the

4 declarants’ experiences varied and were based on a number of different policies or

5 practices. For example, one declarant spoke of discrimination she saw from the

6 recruitment department when she was hiring candidates. (Boeh Decl. ¶ 6.) Another

7 described alleged retaliation from her direct supervisor after she complained to HR.

8 (Smith Decl. ¶ 10.) Thus, Plaintiffs’ declarations further illustrate how employees

9 experienced discrimination in different ways at the hands of different individuals.

10

The cases that Plaintiffs highlight in which courts certified Title VII classes all

11 feature some “glue” that tied the many discretionary decisions together—the very thing

12 that is missing here. As the court has already discussed at length, several features

13 distinguish the case-at-hand from Ellis II. Unlike Ellis II, the class size here is not as

14 limited in number or scope, see id. at 509; no companywide process imposes meaningful

15 requirements on lower-level managers, see id. at 511; and critically, top management is

16 not intimately involved with the pay and promotions process, see id. at 511-15.17

17 //

18 //

19

17 Likewise, the proposed class here is distinguishable from that in Chen-Oster. The

proposed class in Chen-Oster was four times smaller than the class here and spanned only two

20 job positions. See 2018 WL 1609267, at *2. Moreover, Chen-Oster featured more involvement by upper-management, such as setting the budget that determined compensation (id. at *4),

21

developing a list of candidates for promotion with ranking to emphasize priority candidates (id.), and personally selecting and training the people who evaluated the promotion candidates (id. at

22

*5). Ultimately, the upper management “decide[d] who is promoted.” (Id.) There is no such evidence of upper management involvement here.

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1

And unlike McReynolds, Plaintiffs do not identify a companywide policy that

2 required managers to allow the allegedly-discriminatory practice. See 672 F.3d at

3 489-90. In McReynolds, plaintiffs challenged “teaming” and “account distribution”

4 policies that allowed employees to form their own teams for compensation purposes. Id.

5 at 488. But these policies did not allow any discretion on the part of managers in

6 determining whether to allow teaming. Id. at 489. Indeed, McReynolds recognized that if

7 the decision of whether to allow teaming was delegated to local management, the

8 resulting discrimination would be akin to that alleged in Dukes. Id. at 490. Because the

9 challenged policies were mandated on a company-wide basis, however, the policies were

10 not an exercise of discretion by local managers. Id. at 489-90. Plaintiffs identify no

11 comparable corporate policy here.18

12

In sum, Plaintiffs challenge Microsoft’s policy of allowing discretion by

13 lower-level managers but have not identified a common mode of exercising discretion

14 that pervades the entire company. As in Dukes, without some common direction, it is

15 “quite unbelievable” that all Microsoft managers supervising over 8,600 putative class

16 members “would exercise their discretion in a common way.” 564 U.S. at 356. Thus,

17 Plaintiffs are in the same position as the Dukes plaintiffs: “challenging [a] practice of

18 //

19

18 The last case Plaintiffs identified also involved a mandatory system that left no room

for managerial discretion. (See MCC at 33 (citing Parra v. Bashas’, Inc., 291 F.R.D. 360, 375

20 (D. Ariz. 2013)).) In Parra, plaintiffs challenged the company’s use of two wage scales that resulted in different pay for employees of different races. 291 F.R.D. at 373-74. The court

21

explicitly recognized that the wage scales were “non-discretionary”—that is, local managers did not have any choice in implementing the two wage scales and the corresponding pay levels. Id.

22

at 375. By contrast, Microsoft’s Calibration Process left significant choice to the lower-level managers in determining how to arrive at pay and promotion decisions.

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1 delegating discretion to local managers, which the Supreme Court specifically held was

2 not a specific employment practice supplying a common question sufficient to certify a

3 class.” See Dukes II, 964 F. Supp. 2d at 1127. Because Plaintiffs provide no convincing

4 evidence of “some glue” holding together the reasons behind the numerous employment

5 decisions they challenge, they have not established a common answer to the question

6 “why was I disfavored.” See Dukes, 564 U.S. at 351. Accordingly, the court concludes

7 that commonality is lacking for Plaintiffs’ disparate impact claims.

8

b. Disparate Treatment Commonality

9

Unlike disparate impact claims, disparate treatment claims do not require plaintiffs

10 to identify a specific companywide employment practice responsible for the

11 discrimination. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n.16

12 (1977). Instead, plaintiffs must provide evidence of a “systemwide pattern or practice” of

13 discrimination, such that the discrimination is “the regular rather than the unusual

14 practice.” Id. at 336. This burden may be met through statistics alone. Id. at 339-40.

15 Upon such a showing, the required discriminatory intent may be inferred. See id. If

16 plaintiffs establish a prima facie case, the burden shifts to the employer to show that the

17 plaintiffs’ statistical evidence is either “inaccurate or insignificant.” Id. at 360.

18

There is a “wide gap” between an individual’s claim that he was subjected to a

19 company’s policy of discrimination, and the existence of a class of persons who have

20 suffered the same injury as that individual, such that the individual’s claim and the class

21 claims will share common questions of law or fact. Dukes, 564 U.S. at 352-53 (citing

22 Falcon, 457 U.S. at 157-58). To bridge that gap, Plaintiffs must provide “significant

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1 proof” that Microsoft “operated under a general policy of discrimination.” Id. at 353.

2 Here, Plaintiffs point to (1) statistical evidence of gender-based disparities; (2) anecdotal

3 evidence illustrating female employees’ experiences of discrimination at Microsoft; and

4 (3) documents evincing Microsoft’s culture of hostility towards women. (See Reply at

5 14.) The court finds, however, that none of the proffered categories of evidence

6 constitute the necessary “significant proof.”19

7

i. Statistical Evidence

8

The court first addresses Plaintiffs’ statistical evidence conducted by Dr. Farber.

9 The plaintiffs in Dukes offered a similar statistical study, in which regression analyses

10 revealed statistically significant disparities between men and women that “can be

11 explained only by gender discrimination.” 564 U.S. at 356. Dukes held that this

12 statistical evidence was insufficient because it suffered from a “failure of inference.” Id.

13 The evidence established only that there was a disparity at the national or regional level,

14 but information at that level did not establish the existence of disparities at individual

15 stores, let alone “the inference that a company-wide policy of discrimination is

16 implemented by discretionary decisions at the store and district level.” Id. at 356-57.

17 //

18 //

19

19 As a preliminary matter, the court notes that much of the commonality analysis for

Plaintiffs’ disparate impact claims apply with equal force to the disparate treatment claims. See

20 Ellis II, 285 F.R.D. at 511 (recognizing the identification of “common policies and practices” as a category of proof supporting commonality in disparate treatment claims). Because Plaintiffs

21

have not identified the existence of common pay and promotion practices that apply to the class as a whole, see supra § III.B.1.a, they cannot predicate commonality for their disparate treatment

22

claims on a “common, companywide promotion system . . . made up of numerous common components,” as the plaintiffs in Ellis II did. See id. at 511-19.

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1 Thus, these statistics could not produce a common answer to the question “why was I

2 disfavored.” Id. at 352.

3

Post-Dukes, the statistical study must “conform[] to the level of decision for the

4 challenged practices.” Ellis II, 285 F.R.D. at 523. When decisions are made at the

5 discretion of each individual supervisor, courts generally find aggregated statistical

6 evidence inadequate because it is “derived from hundreds of employment decisions made

7 by myriad decision makers, at different times, under mutable procedures and guidelines,

8 in different departments, and in different office locations, concerning employees at

9 varying levels of experience, responsibilities, and education.” Jones, 34 F. Supp. 3d at

10 909. On the other hand, if plaintiffs demonstrate that practices are uniform across the

11 company, then courts have found “good reason to rely on nationwide statistics.” Ellis II,

12 285 F.R.D. at 523 (relying on aggregated statistics because the CEO averred that the

13 promotion policies derived from the top management and were uniform across the

14 company).

15

Plaintiffs here have not shown, as the plaintiffs in Ellis II did, that promotion

16 policies and practices are uniform across Microsoft. Compare supra § III.B.1.a, with

17 Ellis II, 285 F.R.D. at 511-18. Thus, unlike in Ellis II, there is not the same “good reason

18 to rely on nationwide statistics.” See 285 F.R.D. at 523. The relevant level of

19 decision-making for the challenged practices here remains at the individual manager, or

20 at best, the team level. Dr. Farber’s statistical study, however, is based on aggregate

21 figures, including all individuals in the Engineering or IT Operations Professions in Stock

22 Levels 59-67. (Farber Rep. ¶ 50 n.45.) At most, he disaggregates the data no further than

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1 the level of the four EVPs, whom the court has already determined merely approved the

2 pay and promotion decisions. (Farber Rebuttal (Dkt. ## 344 (sealed), 359-10 (redacted))

3 ¶ 16); see supra § III.B.1.a. Therefore, even accepting the validity of Dr. Farber’s

4 statistical analysis, his evidence “has the same problem as the statistical evidence in

5 [Dukes]: it begs the question.” See Bolden, 688 F.3d at 896. Dr. Farber’s finding of

6 disparity “may be attributable to only a small set of [Microsoft managers], and cannot by

7 itself establish the uniform, [manager-by-manager] disparity upon which the [P]laintiffs’

8 theory of commonality depends.”20 See 564 U.S. at 357. Consequently, Dr. Farber’s

9 statistical evidence is insufficient to show any common issue that would permit a

10 nationwide class.21

11

ii. Anecdotal Evidence

12

Plaintiffs’ anecdotal evidence also do not constitute the necessary “substantial

13 proof.” In Dukes, the Supreme Court found the proffered anecdotal evidence “too weak”

14 because plaintiffs filed only 1 affidavit for every 12,500 class members—a ratio that

15 paled in comparison to the 1 for every 8 class members proportion the Court accepted in

16 Teamsters v. United States, 431 U.S. at 337-38. Dukes, 564 U.S. at 358. Courts

17

20 Bolden provides an example to illustrate this effect. See 688 F.3d at 896. For instance, 18 if Microsoft had 25 managers, 5 of whom discriminated in making pay and promotion decisions,
aggregate data would show that female employees fared worse than male employees. But “that
19 result would not imply that all 25 [managers] behaved similarly, so it would not demonstrate commonality.” Id.

20 21 Moreover, Dr. Farber’s analysis does not link the gender disparity he found to the

21

challenged Calibration Process. (See Farber Rep.; Farber Dep. at 264:13-24.) Thus, in comparison to Chen-Oster, where Dr. Farber concluded that the disparity stemmed from the very

22

corporate policies being challenged, Dr. Farber’s analysis here does not as readily support an inference of a policy of discrimination. See 2018 WL 1609267, at *15.

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1 following Dukes have similarly required a significant amount of anecdotal evidence. See

2 Brown, 785 F.3d at 913 (1 for every 6.25 class members); Rollins, 2016 WL 258523, at

3 *5, 7-8 (about 1 for every 4 class members). Here, by contrast, Plaintiffs offer 9

4 declarations for 8,630 class members, or about 1 for every 959 class members.22 (See

5 Farber Rep. ¶ 11; see generally Dkt.) Thus, on the numbers alone, Plaintiffs’ anecdotal

6 evidence is “too weak” to establish that the entire company operates under a general

7 policy of discrimination. See Dukes, 564 U.S. at 358 n.9 (“[W]hen the claim is that a

8 company operates under a general policy of discrimination, a few anecdotes selected

9 from literally millions of employment decisions prove nothing at all.”).

10

Moreover, the anecdotal evidence relates to only 5 of the 41 states in which

11 Microsoft has offices. (See generally Miller Decl.; Underwood Decl.; Hutson Decl.) For

12 four of those five states, Plaintiffs provide only one declaration. (See generally id.) Nor

13 do the declarations represent all the Stock Levels in the class. There are no declarations

14 from Level 67 employees, only one declaration from a Level 66 employee, and only three

15 from Level 59 employees. And lastly, it is difficult to imagine that these nine declarants

16 represent sufficiently the multitude of positions throughout the company. See supra

17 § III.B.1.a.ii (noting over 8,000 unique positions in the challenged Professions).

18

The court does not, in any way, seek to minimize the gravity of these employees’

19 experiences. To the contrary, they provide many examples of serious misconduct. (See,

20 //

21

22 Even including the named plaintiffs’ declarations, Plaintiffs’ total rises to 11

22

declarations for 8,630 class members, or about 1 for every 785 class members. (See Farber Rep. ¶ 11; see generally Dkt.)

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1 e.g., Boeh Decl. ¶ 5 (stating that a male manager refused to recommend her for a

2 promotion because of her potential to take maternity leave).) But even taking all the

3 accounts as true, the nine accounts are simply not enough to demonstrate that Microsoft

4 operated under a general policy of discrimination towards over 8,600 female employees

5 across 41 states holding thousands of unique positions.23

6

iii. Culture Evidence

7

Plaintiffs next assert that the declarations need to be considered in combination

8 with a third category of evidence: documents, such as internal Microsoft memoranda and

9 employee correspondence, that exhibit Microsoft’s culture of hostility towards women.

10 (See Reply at 15; see also MCC at 13-27.) These documents include employee reactions

11 to Microsoft’s announcements that it had achieved gender pay equity (MCC at

12 13-16); senior management’s knowledge of gender bias (MCC at 16-18); and various

13 complaints and charges regarding gender discrimination (MCC at 19-28).

14

But, viewed either individually or in combination, this evidence suffers from the

15 same problem as the declarations: the evidence does not rise to the level of a general,

16 company-wide policy of discrimination that is tied to the challenged employment

17 decisions. Dukes, again, is illustrative. The Dukes plaintiffs similarly relied on evidence

18 of Wal-Mart’s “strong corporate culture,” which purportedly made the company

19

20

23 Microsoft additionally argues that the declarations “suffer from many . . . evidentiary

problems.” (Resp. at 31 n.21.) But the Ninth Circuit recently held that “[i]nadmissibility alone

21

is not a proper basis to reject evidence submitted in support of class certification.” Sali, 2018 WL 2049680, at *5. Because the court’s consideration “should not be limited to only admissible

22

evidence,” Microsoft’s argument regarding the admissibility of Plaintiffs’ declarations is misplaced. See id.

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1 vulnerable to gender bias. 564 U.S. at 353-54. However, plaintiffs did not show “with

2 any specificity how regularly stereotypes play a meaningful role in employment

3 decisions” within the alleged culture of bias. Id. at 354. Without such evidence,

4 information regarding Wal-Mart’s culture did “nothing to advance [the plaintiffs’] case,”

5 because the regularity with which employment decisions might be determined by biased

6 thinking “is the essential question on which [plaintiffs’] theory of commonality depends.”

7 Id.

8

Here, Plaintiffs’ evidence offer, at most, a glimpse into individual incidents that

9 are not sufficiently representative of the entire culture across Microsoft. For instance,

10 Plaintiffs rely on employee reactions to two Microsoft announcements regarding its

11 progress in pay equity. (See, e.g., MCC Docs. at 516-17.) But these reactions—while

12 they may be legitimate critiques of Microsoft’s pay equity analysis—reflect only those

13 employees’ belief regarding the pay equity issue; such personal beliefs fall short of

14 illustrating a common corporate culture. Indeed, Plaintiffs’ evidence reveals that

15 Microsoft CEO Satya Nadella, as well as others, responded to the critiques by

16 acknowledging the next steps Microsoft must take to further address the issue. (E.g., id.

17 at 516.) Such a response does not reflect what Plaintiffs claim to be a culture of evasion

18 and refusal to acknowledge the problem.24 (See MCC at 16.)

19 //

20 24 For this reason, the court also finds unpersuasive Plaintiffs’ evidence regarding the

21

SLT’s recognition of Microsoft’s areas of growth when it comes to D&I matters. (See MCC at 16-18.) Apologizing for past missteps, acknowledging areas of improvement, and setting a

22

“Priorities and Action Plan” do not reflect inaction. (See, e.g., MCC Docs. at 38-39 (recognizing three areas that Microsoft must immediately begin work on).)

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1

The same goes for Plaintiffs’ evidence of various gender discrimination

2 complaints. Plaintiffs assert that the 238 internal complaints Microsoft received are

3 “shocking” but provide the court with no evidence regarding whether that number is

4 unusual for a company like Microsoft with hundreds of thousands of employees. (See

5 MCC at 24.) Plaintiffs additionally attack the efficacy of Microsoft’s ERIT but, again,

6 provide the court no official evaluation of the team other than employee commentary.

7 (See id. at 24-25.) And lastly, Plaintiffs point to a Notice of Violation issued by the

8 Department of Labor’s OFCCP. (See MCC at 11-13; see also MCC Docs. at 112-24.)

9 But the OFCCP had conducted several other audits of Microsoft offices and found no

10 violations on at least 18 other occasions. (See Parris Decl. ¶ 21, Ex. 19.) Thus, the

11 evidence regarding the complaints does not satisfy the “significant proof” needed at this

12 stage.25

13

On the whole, the court finds that Plaintiffs have not provided the “significant

14 proof” of Microsoft’s “general policy of discrimination” necessary to demonstrate

15 commonality in their disparate treatment claims. See Dukes, 564 U.S. at 353. The

16 proffered statistical evidence, the anecdotal evidence, and the internal Microsoft

17 documents do not establish the existence of any common issue, and accordingly,

18 Plaintiffs have not satisfied commonality for their disparate treatment claims. Because

19

20

25 Even accepting the veracity of Plaintiffs’ claims about Microsoft’s culture, this

evidence is insufficient to establish commonality. Like the plaintiffs’ culture evidence in Dukes,

21

Plaintiffs here do not indicate “with any specificity” how the alleged gender stereotypes stemming from Microsoft’s culture play a meaningful role in employment decisions. See 564

22

U.S. at 354. Without answering this “essential question” upon which commonality depends, the evidence of Microsoft’s corporate culture is insufficient to establish commonality. See id.

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1 commonality is lacking for both Plaintiffs’ disparate impact and disparate treatment

2 claims, Plaintiffs have failed to satisfy Rule 23(a)’s prerequisites.26

3

2. Typicality

4

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are

5 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The purpose of

6 the typicality requirement is to assure that the interest of the named representative aligns

7 with the interest of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.

8 1992). Courts “do not insist that the named plaintiffs’ injuries be identical with those of

9 the other class members.” Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir. 2001).

10 Instead, in determining typicality, the court asks “whether other members have the same

11 or similar injury, whether the action is based on conduct which is not unique to the

12 named plaintiffs, and whether other class members have been injured by the same course

13 of conduct.” Ellis I, 657 F.3d at 984 (internal quotation marks omitted) (quoting Hanon,

14 976 F.2d at 508). Individualized defenses applicable to the class representatives do not

15 preclude a finding of typicality unless there is a danger that absent class members will

16 suffer if their representative is preoccupied with defenses unique to it. Hanon, 976 F.2d

17 at 508.

18 //

19 26 Because Plaintiffs have failed to satisfy commonality, they also have failed to show the

20 “far more demanding” requirement that common questions predominate over any questions affecting only individual members. See Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 624

21

(1997); Fed. R. Civ. P. 23(b)(3); see also Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (noting that the Rule 23(b)(3) analysis “presumes that the existence of common issues

22

of fact or law have been established . . . . [T]he presence of commonality alone is not sufficient to fulfill Rule 23(b)(3)”).

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1

The “commonality and typicality requirements of Rule 23(a) tend to merge.”

2 Falcon, 457 U.S. at 157 n.13; see Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014).

3 “Where the challenged conduct is a policy or practice that affects all class members, the

4 underlying issue presented with respect to typicality is similar to that presented with

5 respect to commonality, although the emphasis may be different.” Armstrong, 275 F.3d

6 at 868-69. Thus, “if the plaintiffs cannot establish that they were injured by the same

7 conduct that injured other class members, then their claims cannot be typical of other

8 members of the class.” Jones, 34 F. Supp. 3d at 911; see also Donaldson v. Microsoft

9 Corp., 205 F.R.D. 558, 568 (W.D. Wash. 2001) (“[W]here there is no evidence of a

10 common experience shared by all [class members] at Microsoft, there can also be no

11 ‘typical’ class representative.”).

12

Plaintiffs contend that Ms. Moussouris and Ms. Muenchow’s claims are identical

13 to those of all other class members because they “[have] been paid less than comparable

14 male coworkers” and were passed over “for promotions in favor of less qualified and less

15 experienced men.” (MCC at 35.) The court concludes otherwise and finds, consistent

16 with its commonality determinations, that Plaintiffs have not established typicality with

17 respect to their disparate impact and disparate treatment claims.

18

Although Plaintiffs have identified that all putative class members would be

19 challenging the same injury—lower pay or missed promotions—Plaintiffs’ generalized

20 characterization obscures the many unique facets of the underlying conduct, stemming

21 from the discretion exercised by countless lower-level managers. See supra § III.B.1.a.i.

22 In other words, Plaintiffs have not shown that “other class members have been injured by

ORDER - 62

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1 the same course of conduct.” See Ellis I, 657 F.3d at 984. Some individual class

2 members may want to argue that their initial performance rating was flawed. Or some

3 may want to argue that their accomplishments were not adequately represented in the

4 calibration meeting or people discussion. Others may have substantial evidence that their

5 particular manager was biased. And still others may have no qualms with their initial

6 performance rating, the first calibration meeting, or their direct manager, but wish to

7 challenge how successive discussions unfolded in the roll-up process.

8

Indeed, Plaintiffs’ proffered declarations illustrate the many differences among

9 individual class members’ challenges. For instance, Ms. Dove may challenge the forced

10 comparison process in calibration meetings, because “someone had to receive zero

11 rewards, and that someone became [her] because of [her] gender.” (Dove Decl. ¶ 5.) Ms.

12 Dove’s discrimination claim, then, would center on those calibration meetings, the

13 managers present, and the specific peer group to which she was compared. See id. Ms.

14 Boeh, on the other hand, would challenge her manager’s initial recommendation—or lack

15 thereof—when the manager “did not want to ‘waste’ a promotion” on her after her return

16 from maternity leave. (Boeh Decl. ¶ 5.) Thus, Ms. Boeh’s discrimination claim would

17 not concern the forced comparison in calibration meetings but instead, the initial

18 recommendation process and the specific manager who refused to recommend her for a

19 promotion. Both claims may well have merit, but the very nature of these claims—that

20 is, the conduct that injured these declarants—differs from that of Plaintiffs’ claims and

21 from each other. See Jones, 34 F. Supp. 3d at 911.

22 //

ORDER - 63

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1

In short, the court agrees with the Valerino court’s analysis on how a discretionary

2 pay and promotion system defeated typicality:

3

This is all to say nothing of the different facts plaintiffs would rely on to

prove their disparate claims—different ranking lists, different [manager]

4

notes, different characteristics of individuals like years on the job, district

assignments, and collateral duties, different number of applicant

5

applications, etc. . . . And it is clear that [Plaintiffs’] claims at least involve

different [managers]. This alone is sufficient to demonstrate that their claims

6

are not typical of other members of the class.

7 283 F.R.D. at 318. The conduct underlying Plaintiffs’ action necessarily differs from the

8 conduct that caused other class members’ injuries in this system of unrestrained

9 discretion. Given the discretion-based system, the individualized inquiry will vary for

10 each plaintiff, foreclosing any contention that the named plaintiffs’ claims are typical.

11 Thus, the court concludes that Plaintiffs have also failed to establish typicality.

12

3. Adequacy

13

Rule 23(a)(4) requires Plaintiffs to demonstrate that they will fairly and adequately

14 protect the interests of their class. Fed. R. Civ. P. 23(a)(4). To determine adequacy, the

15 court must resolve two questions: “(1) do the named plaintiffs and their counsel have any

16 conflicts of interest with other class members[;] and (2) will the named plaintiffs and

17 their counsel prosecute the action vigorously on behalf of the class?” Hanlon, 150 F.3d

18 at 1020.

19

Microsoft does not dispute the second issue—that Plaintiffs and counsel will

20 prosecute the action vigorously—nor is the court aware of any reason to doubt Plaintiffs

21 and their counsel on this point. (See Resp.) Microsoft instead argues that adequacy is

22 lacking because the proposed class presents irreconcilable conflicts of interest. (See id. at

ORDER - 64

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1 39-41.) Specifically, Microsoft maintains that because the proposed class consists of

2 females employees who participated as managers in the Calibration Process—the very

3 process being challenged—Plaintiffs must “impugn[] the input of thousands of class

4 members who participated in calibration.” (Id. at 41.) The court agrees.

5

Although there is no per se rule regarding adequacy where a class includes

6 “employees at different levels of an employment hierarchy,” “[the] concern about classes

7 that involve both supervisors and rank-and-file workers can be a valid one in some

8 circumstances.” Staton v. Boeing Co., 327 F.3d 938, 958 (9th Cir. 2003). Courts have

9 not only held that “supervisors may not be appropriate representatives of their

10 subordinates” but have also extended that logic “to prevent a subordinate from

11 representing a supervisor.” Pena v. Taylor Farms Pac., Inc., 305 F.R.D. 197, 215 (E.D.

12 Cal. 2015). “[W]hether employees at different levels of the internal hierarchy have

13 potentially conflicting interests is context-specific and depends upon the particular claims

14 alleged in a case.” Staton, 327 F.3d at 958.

15

Donaldson v. Microsoft Corp. presented circumstances where such a conflict

16 existed. See 205 F.R.D. at 568. In that case, the court expressed “serious concerns”

17 because two named plaintiffs were former supervisors who “were obligated to implement

18 the very supervisory system which this litigation challenges.” Id. Moreover, class

19 members were potentially “in conflict with each other” because of the “significant

20 number of potential class members who are current or former managers.” Id. Because

21 the allegations of disparate impact and disparate treatment arose “directly from the

22 evaluation system,” the court was “unable to envision a class which would include both

ORDER - 65

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1 those who implemented the ratings system and those who allegedly suffered under it.”

2 Id.; see also Valerino, 283 F.R.D. at 318 (recognizing potential conflicts amongst class

3 members if two putative class members were seeking the same promotion).

4

By contrast, in Pena v. Taylor Farms Pacific, Inc., the fact that the class included

5 both supervisors and their subordinates did not defeat adequacy. See 305 F.R.D. at 215.

6 The class in that case alleged that the company implemented uniform policies to withhold

7 pay, deny meal and rest breaks, and issue erroneous paychecks. Id. at 203-04, 215. The

8 court observed that if these uniform policies required hourly employees to work without

9 compensation and breaks, “both supervisors and subordinates would have been affected

10 similarly” because both were hourly employees. Id. at 215. The class member’s title

11 therefore had no relevance to the challenged policies; supervisor or subordinate, the class

12 member would have been denied compensation and break time. See id. Additionally,

13 there was no evidence that the supervisors would be liable for the alleged violations—

14 that is, they had not implemented the policies. Id. Thus, the court concluded that “[n]o

15 conflict is sufficient to call adequacy into question.” Id.

16

The case at hand more closely resembles Donaldson. As in Donaldson, Ms.

17 Moussouris, a named plaintiff, participated in the Calibration Process as a manager and

18 thus was “obligated to implement” the very system that Plaintiffs challenge. (See Saad

19 Rep. ¶ 18; Moussouris Dep. at 103:16-23, 104:19-21.); 205 F.R.D. at 568. Indeed, Ms.

20 Moussouris recalls some of her subordinates’ ratings being downgraded during the

21 Calibration Process. (Moussouris Dep. at 119:4-18.) Furthermore, 2,126 putative class

22 members were managers at least once during the class period, and 3,457 members were

ORDER - 66

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1 either leads or managers; 472 qualified as “managers of managers.”27 (Saad Rep. ¶ 17.)

2 Thus, as in Donaldson, a “significant number of potential class members” here

3 participated in the very system and the very decisions that are alleged to be

4 discriminatory. See 205 F.R.D. at 568. The direct involvement of the managers, and the

5 extent of that involvement, distinguish the circumstances here from those in Pena, where

6 the supervisors had no say in the challenged policies. See 305 F.R.D. at 215. Because

7 Plaintiffs’ disparate impact and disparate treatment claims stem directly from the system

8 that many putative class members—including a named plaintiff—took part in, the class

9 “include[s] both those who implemented the ratings system and those who allegedly

10 suffered under it.” See Donaldson, 205 F.R.D. at 568. The court agrees with Donaldson

11 that “[t]his conflict appears insurmountable.” See id.

12

Plaintiffs’ only response to Donaldson is that the Ninth Circuit’s subsequent

13 Staton v. Boeing Co. decision limited Donaldson’s applicability. (See Reply at 20.) Not

14 so. Staton did not abrogate Donaldson or call into doubt Donaldson’s reasoning. Staton,

15 327 F.3d at 958. Instead, Staton merely affirmed that for the purposes of adequacy, the

16 significance of a class with employees at different levels depends on the circumstances of

17 the case. Id. Like the circumstances presented in Donaldson, 205 F.R.D. at 568, and

18 contrary to those in Pena, 305 F.R.D. at 215, the context and claims presented here lead

19 //

20 //

21

27 At least three of the nine declarants also participated in the Calibration Process as

22

managers. (See Parris Decl. ¶ 4, Ex. 2 (“Alberts Dep.”) at 69:14-18; id. ¶ 8, Ex. 6 (“Dove Dep.”) at 44:3-22; id. ¶ 15, Ex. 15 (“Sowinska Dep.”) at 54:22-55:8.)

ORDER - 67

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1 the court to conclude that Plaintiffs and absent class members’ interests will often

2 conflict. Those conflicts of interest further undermine class certification.

3

In summary, after careful review, the court finds that Plaintiffs have failed to carry

4 their burden of satisfying the Rule 23(a) prerequisites. First, Plaintiffs have not

5 demonstrated a common question to be resolved on behalf of the putative class. See Fed.

6 R. Civ. P. 23(a)(2). Additionally, Plaintiffs have failed to establish that the Plaintiffs’

7 claims are typical of those of the class members, see id. 23(a)(3), or that the Plaintiffs are

8 adequate representatives of absent class members, see id. 23(a)(4). For all of these

9 reasons, the court denies Plaintiffs’ motion for class certification.

10

IV. CONCLUSION

11

For the foregoing reasons, the court DENIES Plaintiffs’ motion for class

12 certification (Dkt. ## 228 (sealed), 381 (redacted)). The court DIRECTS the Clerk to

13 provisionally file this order under seal and ORDERS the parties to meet and confer

14 regarding the need for redaction. The court further ORDERS the parties to jointly file a

15 statement within ten (10) days of the date of this order to indicate any need for redaction.

16

Dated this 25th day of June, 2018.

17 18

A

19

JAMES L. ROBART

United States District Judge

20

21

22

ORDER - 68

 
 Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 1Paogf e501 of 50

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

9

10

KATHERINE MOUSSOURIS, et al.,

CASE NO. C15-1483JLR

11

Plaintiffs,

v. 12

MICROSOFT CORPORATION, 13

· Defendant.
14

ORDER ON MOTION FOR SUMMARY JUDGMENT

15

I. INTRODUCTION

16

Before the court is Defendant Microsoft Corporation's ("Microsoft") motion for

17 summary judgment. (MSJ (Dkt. ## 403 (sealed), 489 (redacted)).) Plaintiffs Katherine

18 Moussouris, Holly Muenchow, and Dana Piermaripi (collectively, "Plaintiffs") oppose

19 the motion. (Resp. (Dkt. ## 436 (sealed), 476 (redacted)).) Plaintiffs also filed a surreply

20 to strike portions of Microsoft's reply. (Surreply (Dkt. # 456).) The court has considered

21 the motion, the parties' submissions in favor of and in opposition to the motion, the

22 II

ORDER-1

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1 relevant portions of the record, and the applicable law. Being fully advised,1 the court

2 GRANTS in part and DENIES in part Microsoft's motion.

3

II. BACKGROUND

4

Plaintiffs are former and current Microsoft employees who challenge Microsoft's

5 "continuing policy, pattern, and practice of sex discrimination against female employees

6 in technical and engineering roles ... with respect to performance evaluations, pay,

7 promotions, and other terms and conditions of employment." (SAC (Dkt. #55)~ 1.)

8 Plaintiffs bring claims of disparate treatment and disparate impact under both Title VII of

9 the Civil Rights Act of 1964,42 U.S.C. §§ 2000e et seq., and the Washington Law

10 Against Discrimination ("the WLAD"), RCW 49.60.010, et seq. (SAC~~ 89-118.) Ms.

11 Moussouris and Ms. Piermarini also bring retaliation claims under Title VII, and Ms.

12 Moussouris brings a claim for retaliation in violation of the WLAD. (Id. ~~ 119-28.) The

13 court has detailed the factual and procedural background of this case in several prior

14 orders. (See, e.g., 317116 Order (Dkt. #52); 10114116 Order (Dkt. # 134); 4125118 Order

15 (Dkt. # 467); 6125118 Order (Dkt. # 504).) Thus, in this ord€r, the court recounts only the

16 information relevant to Microsoft's instant motion.

17

Microsoft is a "global provider of software and software-related services as well as

18 hardware devices." (SAC~ 2.) Microsoft utilizes the Calibration Process to evaluate

19 employee performance-a process where managers compare and standardize employees'

20 II

21

1 Microsoft requests oral argument (MSJ at 1), but the court finds that oral argument

22

would not be helpful to the court's disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4). Accordingly, the court denies Microsoft's request.

ORDER-2

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1 performance ratings across a cohort of similarly-leveled colleagues. (See Parris Decl.

2 (Dkt. # 402) ~ 3, Ex. 1 ("Microsoft Docs.") at MSFT2272.)2 From 2011 to 2013,

3 managers conducted "calibration meetings," during which they assigned employees a

4 numerical performance rating of 1 to 5-1 as the highest score and 5 as the lowest-

5 based on 3 aspects of the employee's performance: (1) the employee's work results, or

6 the "what"; (2) how the employee accomplished those results, or the "how"; and (3) the

7 employee's demonstrated history of work, or "proven capability." (Id. at MSFT881.)

8 The performance rating affected salary increases, bonuses, and stock awards. (Lamy

9 Decl. ~ 9, Ex. F ("Ritchie Dep.") at 231:20-25, 325:6-10.) Managers also discussed

10 promotions. Promotions depended on three criteria: (1) employee readiness, (2) business

11 · need, and (3) available budget. (Microsoft Docs. at MSFT2235.) Recommendations

12 reached at calibration meetings were provided, or "rolled up," to the next level of

13 management for review. (Wilson Decl. (Dkt. # 322) ~ 24.)

14

In 2014, Microsoft shifted from evaluating performance in calibration meetings to

15 . "people discussions." (Microsoft Docs. at MSFT4130.) For people discussions,

16 Microsoft eliminated the numerical performance ratings, and managers shifted their focus

17 to "the impact the employee's performance makes on his or her organization and across

18 the company in light of his or her role." (Wilson Decl. ,-r 10.) Managers continued to

19 //

20

21

2 Plaintiffs also reference this set of documents produced by Microsoft. (See Lamy Decl. (Dkt. ## 437 (sealed), 442 (redacted))~ 4, Ex. A.) The court refers to these documents generally

22

as "Microsoft Docs." and cites the Bates Number located on the bottom right-hand comer of the page. (See generally Microsoft Docs.)

ORDER- 3

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1 discuss promotions during people discussions. (See DeCaprio Decl. (Dkt. # 295)

2 ~~ 14-15.)

3

Because each Plaintiffs claims against Microsoft concern her individual

4 employment there, the court summarizes Ms. Moussouris, Ms. Muenchow, and Ms.

5 Piermarini' s experiences at Microsoft. For each Plaintiff, the court first recounts her

6 employment history and then addresses the identified comparators.

7 A. Ms. Moussouris

8

1. Employment History at Microsoft

9

Microsoft hired Ms. Moussouris in April 2007, as a Level 62 Program Manager in

10 the Trustworthy Computing Group ("TCG"). (Parris Decl. ~ 7, Ex. 5 ("Moussouris

11 Dep.") at 22:4-12, 28:18-21;3 Lee Decl. (Dkt. ## 404 (sealed), 401 (redacted))~ 4.) Ms.

12 Moussouris "promote[d] the work of Microsoft security" and "increase[d] the security of

13 Microsoft" by collaborating with the hacker community and promoting new and

14 emerging security best practices. (Id. at 23:2-16.) Over her seven""year tenure at

15 Microsoft, Ms. Moussouris created "Microsoft vulnerability research, the first

16 multi-vendor coordination center of the company"; wrote the "coordination policy, which

17 was the first policy in Microsoft's his~ory"; created an internal policy to guide employees

18 who discover vulnerabilities; established new programs to entice hackers to work for the

19 company; and collaborated to create international standards on vulnerability disclosure.

20 II

21

3 Plaintiffs also attach Ms. Moussouris's June 10, 2016, deposition testimony as an

22

exhibit to their responsive briefing. (See Lamy Decl. ~ 6, Ex. C.) The court cites "Moussouris Dep." when referring to her deposition.

ORDER-4

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1 (!d. at 27:10-28:17.) Ms. Moussouris' s work has shaped the security industry over the

2 past decade. (See id. at 28:10-17.)

3

In 2008, Ms. Moussouris witnessed Director of TCG Andrew Kushman engage in

4 sexual harassment and reported the behavior to Human Resources ("HR"). (See id. at

5 196:13-21.) After an investigation, Microsoft transferred Mr. Kushman to a different

6 position and required him to undergo training; Microsoft eventually promoted Mr.

7 Kushman again. (Id. at 197:9-15.) During annual evaluations for that year, after she

8 made the complaint, Ms. Moussouris's rating was adjusted downwards, resulting in lower

9 compensation for that year. (See id. at 201 :16-202:22.)

10

Microsoft subsequently promoted Ms. Moussouris from Level 62 to Level 63.

11 (Moussouris Decl. (Dkt. # 242) ~ 2; Lee Decl. ~ 4.) In 2010, Microsoft again promoted

12 Ms. Moussouris to Level64. (Id.) For the remainder of her tenure, Ms. Moussouris

13 sought but did not receive another promotion to Level 65.

14

Leading up to the 2012 evaluations, Ms. Moussouris brought about the

15 "highest-rated news announcement for [TCG] that year" with a "payout-of over

16 $250,000[.00] in defensive security research prizes in a contest called the BlueHat Prize

17 which [Ms. Moussouris] created." (Parris Decl. ~ 12, Ex. 10 (Dkt. ## 410 (sealed),

18 402-14 (redacted)) ("Moussouris Interr.") at 12.) Her manager, Mark Oram, commented

19 that Ms. Moussouris executed projects that achieved "the highest satisfaction feedback

20 rates to date" and that she "responded well to constructive criticism and [was] very

·21 positive and self-aware." (Microsoft Docs. at MSFT145.) He noted that she had an

22 "outstanding performance" and recommended a performance rating of2. (Moussouris

ORDER-5

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1 Interr. at 24.) However, after the Calibration Process, managers downgraded her rating to

2 a 3 and did not promote her to a Level 65. (Id.) Instead, Microsoft promoted a male

3 employee,

er Ms. Moussouris. (Id. at 12, 20; Moussouris Dep. at

4 280:8-12; Lee Decl. ~ 12.)

5

The following year, in 2013, Ms. Moussouris received mixed feedback from her

6 peers. All of her peers agreed that Ms. Moussouris "[d]emonstrate[d] perseverance in the

7 pursuit of goals." (Microsoft Docs. at MSFT842201.) The majority also agreed that she

8 "[a]ddress[ed] complex business issues through collaboration" and that she "[p]rovide[d]

9 appropriate solutions based on [the] customer's business needs." (Id.) One colleague

10 commented that Ms. Moussouris "gets stuff done, and not just any stuff: huge

11 business-impacting stuff that requires company-wide approval at exec levels." (Id. at

12 MSFT842202.) However, others commented that Ms. Moussouris needed to improve her

13 interactions with co-workers. One colleague stated that she is "often hostile towards

14 those she disagrees with" and that he had "never seen behavior this bad." (Id. at

15 MSFT842201.) Another concluded-that "[u]nder no circumstance-no circumstance

16 whatsoever-should [Ms. Moussouris] be a manager again." (Id. at MSFT842203.)

17

Mike Reavey, one of Ms. Moussouris' s managers, commented that Ms.

18 Moussouris had "grown as a manager in [2013]" and praised her for "develop[ing] an

19 effective team." (Id. at MSFT154.) Mr. Reavey commented that Ms. Moussouris

20 "oversaw the[] delivery of the most successful [security event] to date" and described her

21 contributions as "critical" and likely to "lead to a fundamental change in how [Microsoft]

22 counter[s] targeted [security] attacks." (Id. at.MSFT156-57.) Mr. Reavey described Ms.

ORDER-6

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1 Moussouris as "an effective collaborator" who displayed "a willingness to positively

2 engage with the opinions of others," although he recognized that she "do[es] not 'suffer

3 fools gladly."' (Id. at MSFT159.) Although there remained "areas for growth when

4 working in the more challenging team situations," Mr. Reavey concluded that those areas

5 "should not outweigh [her] overall contribution." (Id. at MSFT160.)

6

Mr. Oram also lauded Ms. Moussouris's performance for the 2013 annual review

7 and recommended the highest performance rating of 1. (Moussouris Interr. at 24.) He

8 additionally recommended her for promotion. (Id. at 12.) Despite Mr. Oram's initial

9 recommendations, Ms. Moussouris's rating was again downgraded, this time to a 2,

10 because managers at the calibration meeting found her communication style "too

11 aggressive." (Id. at 24.) Microsoft again denied Ms. Moussouris a promotion, instead

12 promoting someone Mr. Oram had not recomtnended-Ms. Moussouris's male colleague

13 · Jerry Bryant. (Id.; Moussouris Dep. at 265:20-266:3.) After the 2013 review cycle, Ms.

14 Moussouris' s manager informed her that although the quality and scope of her work had

15 been at a Level 65 level for years, the "how" of her work kept her from a promotion.

16 (Moussouris Dep. at 257:10-13, 259:24-260:3; Moussouris Interr. at 7, 12, 24.)

17

After Ms. Moussouris received her 2013 performance ratings, she decided that she

18 no longer wanted to manage the team. (Moussouris Dep. at 247:15-248:17.) Because

19 she had "seen such a poor outcome" from the Calibration Process-a system she

20 observed to be "broken and disadvantageous"-Ms. Moussouris "didn't want to be a

21 party to that system anymore." (Id. at 248:1-9.) Around January of2014, Mr. Bryant-

22 whom Microsoft had promoted over Ms. Moussouris and became her new manager-

ORDER-7

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Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 9Paogf e509 of 50

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 1P0agoef 5100 of 50

1 similar tenure at Microsoft; and were grouped with Plaintiffs in terms of Stock Level.

2 (Gilgenbach Decl. ~ 2.) Plaintiffs note that 286 comparable male employees within the

3 Engineering Profession received greater compensation or were promoted before Ms.

4 Moussouris between 2012 and 2014. (!d.~ 3; see also id. Tbl. 1-2.)

5 B. Ms. Muenchow

6

1. Employment History at Microsoft

7

Microsoft hired Ms. Muenchow in 2002 as a Level 58 Software Test Engineer in

8 the Engineering Profession. (Muenchow Decl. (Dkt. # 243) ~ 2; Parris Decl. ~ 8, Ex. 6

9 ("Muenchow Dep.") at 28:14-21.)1 Microsoft promoted Ms. Muenchow to Level 59 in 10 2005 and transferred to the liT Operations Profession in 2006. (Muenchow Decl. ~ 2.)

11 Microsoft promoted Ms. Muenchow to Level 60 in early 2008, to Level 61 in September

12 of 2008, and Level 62 in 2012. (!d.) Around March 2016, Microsoft promoted Ms.

13 Muenchow to Level63. (Muenchow Dep. at 40:17-23.)

14

While in the liT Operations Profession, Ms. Muenchow repeatedly expressed

15 interest in moving back to the Engineering Profession because employees in the liT

16 Operations Profession earned less. (!d. at 179:2-18.) Since 2010, she has reported to an

17 engineering manager, been on a team comprised mostly of engineers, and performed

18 tasks previously assigned to engineers. (!d. at 180:13-21.) Microsoft did not move her

19 back to the Engineering Profession until April2016. (Muenchow Decl. ~ 2.)

20 II

21

7 Plaintiffs also attach Ms. Muenchow's June 22, 2016, deposition testimony as an

22

exhibit. (See Lamy Decl. ,-r 7, Ex. D.) The court cites "Muenchow Dep." when referring to her
deposition.

ORDER-10

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1

During her tenure, Ms. Muenchow has received mixed reviews from her

2 colleagues and managers. In 2011, Ms. Muenchow's manager expressed "complete

3 confidence" in her, adding that "for her level, [Ms. Muenchow] has very broad scope and

4 is great at seeing the big picture." (Microsoft Docs. at MSFT282.) Others on the team

5 "look[ed] to [Ms. Muenchow] as a leader" because she was "not afraid to make decisions

6 and drive accountability for" her tasks. (Id. at MSFT281.) However, her manager

7 reported that Ms. Muenchow "can have very strong convictions and ... [was] assertive in

8 articulating them"; thus, "when her stress levels are extremely high, [her] frustration can

9 lead to less productive discussions." (Id.) Her manager additionally described Ms.

10 Muenchow as a "pit bull," meaning that Ms. Muenchow is "strong and tenacious, but

11 sometimes dangerous." (Parris Decl. ~ 13, Ex. 11 ("Muenchow Interr.") at 6 (internal

12 quotation marks omitted) (quoting Microsoft Docs. at MSFT272).) Ms. Muenchow

13 received a performance rating of 4 in 2011. (Muenchow Dep. at 169:19.)

14

In 2012, Ms. Muenchow's manager recounted that Ms. Muenchow "served an

15 instn1mental role in the success of' her projects, calling her "a key figure" on the.team.

16 (Pls. Docs. at P865.) Another manager characterized Ms. Muenchow as "a very valuable

17 resource." (Id.) Ms. Muenchow received "100% positive" feedback from her peers. (Id.

18 at P872.) Managers identified her areas of growth to be "[a]ttention to detail" and

19 "ensuring that conflicts [do not] escalate unnecessarily." (Id. at P871.) However, her

20 manager emphasized that those areas reflected particular improvements, clarifying that

21 Ms. Muenchow "has a good ability to focus on details in general" and that she is "a

22 II

ORDER-11

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1 generally collaborative person." (Id.) Ms. Muenchow's manager gave her a performance

2 rating of3. (Muenchow Dep. at 170:20-22.)

3

In 2013, Ms. Muenchow's manager described her as "[g]oal-oriented" and "[a]ble

4 to rally folks_around a common goal." (Microsoft Docs. at MSFT324.) However, Ms.

5 Muenchow's "[c]ommunication style can be too direct at times." (Id.) For the 2013

6 annual review cycle, Ms. Muenchow's manager characterized her as "a great team

7 player," "self-motivated," and "great at taking the initiative to solve tactical problems."

8 (Id. at MSFT317.) However, sometimes Ms. Muenchow would "go[] dark with [her]

9 status on work unknown." (Id.) And although her manager recognized that Ms.

10 Muenchow had made "good progress" on improving her communication style, she should

11 continue to work on not being "too direct." (Id.) Overall, her manager concluded that

12 2013 "was a very good year." (Id.) Ms. Muenchow's manager rated her performance a 2

13 for the year. (Id. at MSFT318.)

14

In 2014, Ms. Moussouris again received generally positive feedback. (Pis. Docs.

15 at P807-11.) Her manager recommended that she focus on "learning to choose [her]

16 battles" because some colleagues regard her tenacity as "pushing too far instead of

17 effectively compromising." (Id. at P809.) In 2015, Ms. Moussouris continued to produce

18 "valuable results" and "delivered effectively on all of [her] goals." (Id. at P876-77.)

19 Again, her manager emphasized the need for her to "build[] the right relationships and

20 understanding first." (Id. at P877.) Ms. Moussouris was an "established leader" on the

21 team, and her manager believed that with the noted improvements, she could have "even

22 more broad impact across teams." (Id. at P878.)

ORDER-12

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Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 1P5agoef 5105 of 50

1 ("Piermarini Dep.") at 21:10-19, 61 :3-13.)8 In 2008, Microsoft promoted her to Level 63.

2 (Lamy Decl. ~ 10, Ex. G ("Piermarini Charge") ~ 9.) From 2008 to 2010, Ms. Piermarini

3 received largely positive reviews. In 2008, her manager commented that Ms. Piermarini

4 "demonstrated passion, commitment, and desire for challenging assignments" and

5 possessed "an excellent mix of technical background, business acumen[,] and sales

6 skills." (Microsoft Docs. at MSFT464.) In 2009, Ms. Piermarini had a "very successful

7 and productive year," "establish[ed] herself as a respected and demanded specialist," and

8 "tackl[ed] complex and ambiguous problems, ultimately delivering a best-in-class

9 solution." (Id. at MSFT476.) 2010 was another "strong year," during which she earned a

10 Gold Star Award for her work. (Id. at MSFT486.) Her manager commended her "ability

11 to bring different groups together to partner for success." (!d.) Despite these reviews,

12 managers consistently put Ms. Piermarini in the middle 70% of performers rather than the

13 top 20%.9 (See, e.g., id.) One manager noted in 2009 that although she is a "[p]roven top

14 third of the team," she needed "[m]ore opportunities ... to break into [the] top 20%."

15 (Id. at MSFT476.)

16

In 2010, Ms. Piermarini's manager Javier Vasquez recommended her for a

17 promotion. (Piermarini Dep. at 29:22-23.) Around the same time, Ms. Piermarini took

18 three months of maternity leave and returned to work in November 2010. (See id. at

19

20

8 Plaintiffs also attach Ms. Piermarini's June 9, 2016, deposition testimony. (See Lamy

Decl. ~ 8, Ex. E.) The court cites her testimony as "Piermarini Dep."

21

9 Microsoft used a "contribution ranking" at this time to compare employees. From 2008

22

to 2010, Ms. Piermarini was given a 70% contribution ranking rather than a 20% contribution ranking. (See Microsoft Docs. at MSFT486.)

ORDER-15

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v
1 28:1-5.) Upon her return, she learned that a higher-level manager had denied her

2 promotion because he "wanted to see what [she] could do when [she] got back from

3 leave." (Id. at 30:17-19.) Instead, a male colleague received the promotion. (Id. at

4 217:18-218:7.) Ms. Piermarini continued to excel the next year, which she characterized

5 as "her best year ever at Microsoft and in [her] professional career." (Microsoft Docs. at

6 MSFT505.) Her manager agreed, giving her the highest performance rating of 1 and

7 commenting that Ms. Piermarini "performed extremely well," "grew significantly," and

8 "drove others around her to improve their performance." (Id.) Following this review,

9 Microsoft promoted Ms. Piermarini to Level 64. (!d. at MSFT23269-70.)

10

In 2014, Ms. Piermarini inquired about a promotion to Level65, and her

11 second-level manager-the supervisor of her direct manager-informed her that Ms.

12 Piermarini "was on [the] list;'' which Ms. Piermarini understood to mean she would be

13 recommended for a promotion soon. (Piermarini Dep. at 88:18-89:9.) Around the same

14 · time, David Walker became her direct manager. (See id. at 57:3-14.) In November 2014,

15 Ms. Piermarini asked Mr. Walker when he would recommend her for a promotion. (!d. at

16 94:15-96:5.) Mr. Walker replied that he did not believe she was ready and that she had to

17 take on a "big project." (Id. at 96:3-9.) Ms. Piermarini offered to spearhead a large

18 project on which the team was working, and they agreed that she would draft a proposal

19 containing her initial thoughts. (Id. at 96:21-97:10.)

20

After working on her proposal, Ms. Piermarini informed Mr. Walker twice that

21 she was ready to proceed. (Id. at 133:17-134:4.) Both times, Mr. Walker failed to take

22 any next steps. (Id. at 134:1-4.) Ms. Piermarini did not hear more about the project until

ORDER-16

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 1P7agoef 5107 of 50

1 · she learned that Mr. Walker had assigned the project to another - m a l e colleague,

2 -

(Id. at 166:1-167:6.) M r . - told Ms. Piermarini that he did not know why

3 Mr. Walker assigned him the project-Mr.

was under the impression that Ms.

4 Piermarini would lead the project. (Jd. at 166:21-167:6.) Microsoft promoted Mr.

5 to Level65 the next year; Ms. Piermarini remained at a Level64. (Lee Decl. ~~ 6, 26.)

6

Ms. Piermarini's tension with Mr. Walker escalated in 2015. In February 2015,

7 Ms. Piermarini had to care for her sick children at home and received work emails- from

8 Mr. Walker that she found "harassing." (Pls. Docs. at P5949.) Ms. Piermarini

9 approached him in March 2015 about the situation, and Mr. Walker allegedly replied she

10 "cannot be doing childcare during working hours." (Id.) Mr. Walker later denied making

11 this comment. (Id. at P5948.) Although male colleagues often balanced child care

12 responsibilities with work (Piermarini Dep. at 140:8-16, 143:8-20), Mr. Walker had not

13 criticized them (id. at 143:22-23). Mr. Walker also accused Ms. Piermarini of getting

14 "emotional ... [one] minute into the conversation." (Pis. Docs. at P5949.) Ms.

15 Piermarini complained about this behavior to Mr. Walker's manager, who conducted a

16 meeting with both of them in March of2015. (Piermarini Dep. at 149:14-6.) Ms.

17 Piermarini expressed that Mr. Walker treated her differently. (Id. at 150:13-23.) Mr.

18 Walker became "very defensive and agitated." (Jd. at 150:9.) Ms. Piermarini

19 communicated that she 'just want[ed] to ... do [her] job ... and not feel like [she has] a

20 target on [her] back." (Id. at 152:5-9.)

21

Two weeks later, Ms. Piermarini filed an official complaint about Mr. Walker with

22 Microsoft's Employment Relations and Investigation Team ("BRIT"), which investigates

ORDER-17

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1 any alleged violations of Microsoft's Anti-Harassment/Anti-Discrimination policy. (Id.

2 at 153:19-20, 159:17-160:25.) Ms. Piermarini reported that she felt Mr. Walker had been

3 treating her differently because she was a woman, citing his assignment of the project she

4 sought to a male colleague; transfer of her accounts to male counterparts; and his

5 comments regarding her chi1dcare obligations. (Id. at 159: 17-160:25.)

6

Ms. Piermarini received negative feedback on her next annual review in 2015.

7 (See Microsoft Docs. at MSFT595-96, MSFT11031-32.) For instance, her manager

8 commented that she did not have the necessary technical expertise and was unwilling to

9 work with others-comments that she had not previously received. (Piermarini Dep. at

10 228:10-18.) Her manager further commented on needing "[m]ore timely notification"

11 from Ms. Piermarini when taking time off and also observed "unnecessary conflict with

12 some members of the ... team[] that could have been improved with better

13 communication." (Id. at MSFT11031-32.) A peer commented that she "does not appear

14 to have the level of commitment required to taclde difficult, complex problems." (Id. at

15 MSFT596.) Another remarked that she needed a "more happy/better attitude." (Id.) Ms.

16 Piermarini believes Mr. Walker solicited those negative comments. (Piermarini Dep. at

17 229:13-17, 230:4-14.) She subsequently informed HR of Mr. Walker's retaliation and

18 requested that the negative review be changed. (Id. at 232:2-20.) Mr. Walker eventually

19 changed the wording of his review so that it did not read as negatively. (Id. at 233:2-13.)

20

In 2016, Noah Sandidge became Ms. Piermarini's manager. (Lamy Decl. ~ 11,

21 Ex. H ("2d Piermarini Charge") 'if 26.) Ms. Sandidge had previously attended Ms.

22 Piermarini's deposition for this case. (Id.) Ms. Sandidge subsequently expanded Ms.

ORDER-18

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Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 2P0agoef 5200 of 50

1

to Level 64 i n . after only a year as a Solutions Specialist. (Piermarini

2 Interr. at 15.) Microsoft then promoted Mr.

to Level 65 after only three years of

3 experience as a Solutions Specialist. (Id.)

4

Plaintiffs additionally identify several unnamed comparators who earned more

5 than Ms. Piermarini. For example, in 2014, employee 482291-a Level63 Solution

6 Specialist working out of Ms. Piermarini's office-earned $17,850.00 more than Ms.

7 Piermarini-a Level 64 employee who had worked at Microsoft for twice as long.

8 (Gilgenbach DecI. Tbl. 1.) The following year, employee 382192-another Level 64

9 Solution Specialist from Ms. Piermarini' s office with one less year of experience-

10 earned $138,479.00 more than Ms. Piermarini. (Id.)

11

Having summarized the relevant facts, the court now addresses the motion for

12 summary judgment.

13

III. ANALYSIS

14

Plaintiffs not only oppose Microsoft's motion for summary judgment but also seek

15 to strike portions of Microsoft's reply. (See Resp.; Surreply.) The courtaddresses

16 Plaintiffs' surreply before turning to the merits of Microsoft's motion.10

17 II

18

10 Plaintiffs recently appealed the court's denial of class certification. (See Not. (Dkt.

# 509).) But "an appeal of a:n interlocutory order does not ordinarily deprive the district court of

19 jurisdiction except with regard to the matters that are the subject of the appeal.'' Britton v. Co-op

Banking Grp., 916 F.2d 1405, 1412 (9th Cir. 1990). The court does not find that the issues

20 presented in the motion for summary judgment are "inextricably bound up" with the class
certification order. See Paige v. State ofCal., 102 F.3d 1035, 1039 (9th Cir. 1996).

21 Furthermore, "[a]n appeal does not stay proceedings in the district court unless the district judge
or the court of appeals so orders." Fed. R. Civ. P. 23(£). There has been no such order. (See

22

Dkt.) Thus, despite Plaintiffs' appeal, the court finds it appropriate to resolve Microsoft's motion for summary judgment.

ORDER- 20

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1 A. Plaintiffs' Surreply

2

Plaintiffs request that the court strike footnote 11 from Microsoft's reply brief..

3 (Surreply at 3.) Footnote 11 responds to Plaintiffs' critique ofERlT investigations in two

4 ways: (1) Plaintiffs rely on "a non-representative sample ofERIT outcomes that does not

5 account for all Microsoft employees, any harassment claims, or any years outside the

6 class period"; and (2) a Microsoft internal email, reproduced as a blog posting, that states

7 "about half of all harassment complaints were founded and half of those resulted in

8 termination of the offender's employment." (Reply (Dkt. # 450) at 12 n.ll.)

9

Plaintiffs take issue with both responses. First, they claim that in discovery,

10 Microsoft repeatedly refused to tum over the entire universe ofERlT complaints and thus

11 cannot now criticize Plaintiffs for relying on a smaller set of complaints. (Surreply at

12 1-2; see also Salahi Decl. (Dkt. # 85) ~ 4, Ex. A at 11-12 (requesting all complaints made

13 by employees); id. ~ 5, Ex. Bat 32-33 (refusing to produce documents "beyond the

14 relevant time period" or "related to employees not similarly situated to Plaintiffs").)

15 Second, Plaintiffs contend that a press release is not subject to judicial notice, and thus,

16 the court should not consider the statistic stated in the blog post. (Surreply at 3.)

17

The court will not strike the footnote. The court is aware of the materials

18 Microsoft has refused to produce. (See 8/3/16 Order (Dkt. # 101) at 1.) Thus, the court

19 may evaluate the persuasiveness of Microsoft's argument regarding Plaintiffs' reliance on

20 a smaller sample of complaints in the context of what Microsoft withheld. PeerMusic,

21 III, Ltd. v. LiveUniverse, Inc.-the case Plaintiffs rely upon (Surreply at 2)-involved a

22 sanction on the defendants that prevented them from relying on evidence they had

ORDER- 21

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 2P2agoef 5202 of 50

1 previously withheld. No. CV 09-6160-GW (PLAx), 2011 WL 672585, at *9 (C.D. Cal.

2 Jan. 26, 2011). There was no such sanction here and thus no reason to strike the footnote

3 on this ground.

4

Similarly, the court recognizes that although it may take judicial notice of press

5 releases, it may do so only to "indicate what was in the public realm at the time, not

6 whether the contents of those articles were in fact true." Gerritsen v. Warner Bros.

7 Entmt't Inc., 112 F. Supp. 3d 1011, 1029 (C.D. Cal. 2015) (internal quotation marks

8 omitted) (quoting Von Saher v. Norton Simon Museum ofArt at Pasadena, 592 F.3d 954,

9 960 (9th Cir. 2010)). Thus, the court considers the statistic from Microsoft's blog post

10 with that limitation in mind but finds no need to strike the statement.

11 B. Microsoft's Motion for Summary Judgment

12

Having determined what materials are properly before the court, the court now

13 addresses Microsoft's motion for summary judgment. Microsoft raises the following

14 arguments: (1) Plaintiffs' claims are procedurally barred; (2) Plaintiffs fail to establish a

15 prima facie case for their disparate treatment claims, and even if they could, Microsoft

16 has a legitimate, nondiscriminatory reason for its employment actions that is not

17 pretextual; (3) Plaintiffs fail to establish their disparate impact claims; (4) Ms.

18 Moussouris fails to establish she was constn1ctively discharged; (5) Ms. Moussouris and

19 Ms. Piermarini's retaliations claims are not supported by the evidence; and (6) Plaintiffs

20 are not entitled to punitive damages. (See generally MSJ.) The court reviews the

21 applicable legal standard and then addresses each of Microsoft's arguments in turn.

22 II

ORDER- 22

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1

1. Summary Judgment Standard

2

Summary judgment is appropriate if the evidence, viewed in the light most

3 favorable to the nonmoving party, demonstrates "that there is no genuine dispute as to

4 any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.

5 P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986); Galen v. Cty. ofL.A.,

6 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing

7 there is no genuine issue of material fact and that it is entitled to prevail as a matter of

8 law. Celotex, 477 U.S. at 323. If that burden is met, the nonmoving party "must make a

9 showing sufficient to establish a genuine dispute of material fact regarding the existence

10 of the essential elements" ofher case. Galen, 477 F.3d at 658.

11

The purpose of summary judgment is to pierce the pleadings and to assess the

12 evidence to determine whether there is a genuine need for trial. Matsushita Elec. Indus.

13 Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In resolving a summary judgment

14 motion, the court credits the evidence of the opposing party, Anderson v. Liberty Lobby,

15 Inc., 477 U.S. 242, 255 (1985), and draws all reasonable inferences that may be drawn

16 from the facts placed before the court in the opposing party's favor, Matsushita, 475 U.S.

17 at 587. However, the court may not weigh evidence or make credibility determinations

18 because those are 'jury functions, not those of a judge." Anderson, 477 U.S. at 255.

19

The Ninth Circuit Court of Appeals sets a high standard for granting summary

20 judgment in employment discrimination cases. Schnidrig v. Columbia Mach., Inc., 80

21 F.3d 1406, 1410 (9th Cir. 1996). "[V]ery little evidence" is needed "to survive summary

22 judgment in a discrimination case, because the ultimate question is one that can only be

ORDER- 23

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1 resolved through a searching inquiry-one that is most appropriately conducted by the

2 fact-finder, upon a full record." Id.; see also Wallis v. J.R. Simplot Co., 26 F.3d 885, 889

3 (9th Cir. 1994) ("The requisite degree of proof necessary to establish a prima facie case

4 for Title VII ... on summary judgment is minimal and does not even need to rise to the

5 level of a preponderance of the evidence.").

6

2. Procedural Bars

7

Microsoft begins by clarifying that Plaintiffs' Title VII claims are limited to events

8 that occurred after July 18, 2013, and that their WLAD claims are limited to events that

9 occurred after September 16, 2012. (MSJ at 9.) Plaintiffs "do not dispute that the

10 liability period for Title VII commences on July 18, 2013[,] and for the WLAD on

11 September 16, 2012." (Resp. at 12.) Indeed, the court has already so ruled in its previous

12 order on Microsoft's second motion to dismiss. (10/14/16 Order at 12-18.) Thus, the

13 court reiterates its earlier ruling on the applicable limitations periods.

14

To the extent that Microsoft seeks to prohibit Plaintiffs from referring to any event

15 that occurred outside the limitations period, the court disagrees. (See Resp. at 12.) An

16 employee may use "prior acts as background evidence in support of a timely claim."

17 Nat'! R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Thus, even though a

18 legal action for earlier discriminatory acts may be time-barred, those actions may still be

19 "relevant as background and may be considered by the trier of fact in assessing the

20 defendant's liability." Lyons v. England, 307 F.3d 1092, 1111 (9th Cir. 2002). At the

21 initial stage of an employment discrimination case, "appropriate background evidence

22 will be evidence, either direct or circumstantial, that, when combined with evidence of

ORDER-24

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1 the employer's present conduct, 'give[s] rise to an inference of unlawful discrimination.'"

2 Id. (quoting Tex. Dep 't ofCmty. Affairs v. Burdine, 450 U.S. 248,253 (1981)). Because

3 Microsoft does not challenge any specific evidence that occurred before the limitations

4 period (see MSJ at 9),11 the court has no occasion to determine whether it would

5 constitute "appropriate background evidence," see Lyons, 307 F.3d at 1111.

6

Microsoft next argues that Ms. Piermarini failed to exhaust her administrative

7 remedies because she did not file a charge with the Equal Employment Opportunity

8 Commission ("EEOC") before joining the suit. (MSJ at 9-1 0; Reply at 11-12.) Plaintiffs

9 respond that Ms. Piermarini may "piggyback" on Ms. Moussouris' s EEOC charge and is

10 thus excused from filing her own complaint. The court agrees with Plaintiffs.

11

Generally, individuals bringing a Title VII suit are required to exhaust their

12 administrative remedies by filing a timely charge of discrimination with the EEOC. See

13 Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990); E.E.O.C. v. Fry's Elecs., Inc., 770

14 F. Supp. 2d 1168, 1170 (W.D. Wash. 2011). However, courts recognize an exception to

15 this requirement: "[I]n a multiple-plaintiff, non-class action suit, if one plaintiff has filed

16 a timely EEOC complaint as to that plaintiffs individual claim, then co-plaintiffs with

17 individual claims arising out of similar discriminatory treatment in the same time frame

18 need not have satisfied the filing requirement." Foster v. Ruhrpumpen, Inc., 365 F.3d

19 1191, 1197 (lOth Cir. 2004); see Fry's, 770 F. Supp. 2d at 700. In other words, under the

20 II

21
11 Microsoft alleges that Ms. Moussouris's retaliation claim is time-barred. (MSJ at 23.)
22 The cou~ addresses that argument when it turns to the retaliation claims. See infra§ III.B.6.

ORDER-25

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1 single filing rule, "so long as one [charging] plaintiff timely files an administrative

2 complaint ... similarly-situated [noncharging] plaintiffs may 'piggyback' on that

3 complaint, thereby satisfying the exhaustion requirement." Harris v. Cty. ofOrange, 682

4 F.3d 1126, 1136 (9th Cir. 2012). For the single filing rule to apply, the noncharging

5 plaintiffs claims must be "nearly identical" to the charging plaintiffs claims, Fry's, 770

6 F. Supp. 2d at 1172, which means that the claims "arose out of the same circumstances

7 and occurred within the same general time frame," Foster, 365 F.3d at 1199; see also

8 Horton v. Jackson Cty. Bd. OfCty. Comm 'rs, 343 F.3d 897, 899 (7th Cir. 2003)

9 (requiring that the unexhausted claim arise from the same unlawful conduct).

10

InE.E.O.C. v. Trans Ocean Seafoods, Inc., No. C15-1563RAJ, 2016 WL

11 10591398 (W.D. Wash. Jan. 28, 2016), the court considered whether two noncharging

12 plaintiffs could rely on three charging plaintiffs' EEOC complaint in a sexual harassment

13 employment case. !d. at *2. The plaintiffs worked in different positions and suffered

14 harassment at different times at the hands of different people. See id. at *1.

15 Nevertheless, the court found the noncharging plaintiffs' claims to be "nearly identical."

16 Id. at *2. One noncharging plaintiff experienced sexually harassing conduct as the

17 charging plaintiffs did. Id. And although the other noncharging plaintiff was not

18 sexually harassed, he was "subject.to the same retaliatory conduct" after complaining

19 about the offensive conduct; thus, his retaliation claims "essentially mirror[ed]" those of

20 the charging plaintiffs. !d. That similarity alone triggered the single filing rule. See id.

21

As in Trans Ocean Seafoods, Ms. Piermarini's claims "essentially mirror" those of

22 Ms. Moussouris, the charging plaintiff. See id. Both were female technical employees

ORDER-26

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 2P7agoef 5207 of 50

1 who claimed that as a result of Microsoft's Calibration Process and performance rating

2 system, they received lower ratings that translated to lower compensation. (Compare

3 Moussouris Charge~~ 4-7, with SAC~~ 91-92, Microsoft Docs. at MSFT595-96,

4 MSFT11031-32.) Both sought promotions that weredenied because they were on

5 maternity leave and denied additional responsibilities that could have led to a promotion.

6 (Compare Moussouris Charge~~ 12-18, Moussouris Dep. at 176:4-16, with SAC

7 ~~ 91-92, Piermarini Dep. at 29:22-30:19, 133:17-134:4, 166:1-167:6.) And lastly, both

8 claim Microsoft retaliated against them after they filed formal complaints regarding

9 gender discrimination. (Compare Moussouris Charge~~ 19-20, with SAC~~ 120-23,

10 Piermarini Dep. at 229:13-17, 230:4-14.) Thus, the court concludes that the single filing

11 rule allows Ms. Piermarini to piggyback on Ms. Moussouris's EEOC charge.12 See Trans

12 Ocean Seafoods, 2016 WL 10591398, at *1-2.

13

The case law that Microsoft cites only highlight why the single filing rule applies

14 here. In E. E. 0. C. v. Fry's Electronics, Inc., the noncharging plaintiff alleged a hostile

15 work environment claim, whereas the charging plaintiff brought a retaliation claim. 770

16 F. Supp. 2d at 1173. Because the noncharging plaintiff sought to raise a distinct claim,

17 II

18

12 Some courts apply narrower tests to determine whether the single filing rule applies.

See Foster, 365 F.3d at 1197-98. For l.nstance, some courts consider whether the administrative

19 claim gave notice that the discrimination is class-wide; others look at whether the administrative charge alleges that the charging plaintiff purports to represent similarly situated individuals. Id.

20 Ms. Moussouris' s EEOC complaint does both. She includes "class claims" that gave Microsoft

notice that she challenges its practices "against female technical employees ... at Microsoft

21 work locations throughout the country." (Moussouris Charge 'If 21.) She also alleges that she
brings the complaint on behalf of "other similarly situated female employees" who have been

22

harmed by Microsoft's practices. (Jd. 'If 1.) Thus, under any test, the single filing rule excuses
Ms. Piermarini from exhausting ad1ninistrative remedies.

ORDER-27

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1 the court concluded that the single filing rule did not excuse her failure to exhaust

2 administrative remedies. Id. at 1174. Similarly, in Ng v. Potter, No. C09-0192TSZ, 2009

3 WL 3836045 (W.D. Wash. Nov. 12, 2009), the court declined to apply the single filing

4 rule to allow a hostile environment claim when the EEOC charge involved only disparate

5 treatment claims. Id. at *2-6. Here, in contrast, Ms. Piermarini and Ms. Moussouris

6 bring identical claims of disparate treatment, disparate impact, and retaliation. (See SAC

7 ~~ 90-123.) Thus, Microsoft's cited precedent provides no support for prohibiting Ms.

8 Piermarini from piggybacking on Ms. Moussouris' s EEOC charge.

9

Ms. Piermarini has since filed her own EEOC complaint. (See Resp. at 14; Lamy

10 Decl. ~~ 10-11, Exs. G-H.) Microsoft argues that because Ms. Piermarini has now filed

11 her own EEOC complaint, she cannot invoke the single filing rule. (See Reply at 11

12 (citing Gitlitz v. Compagnie Nationale Air France, 129 F.3d 554, 558 (11th Cir. 1997)).)

13 But, at the time of the complaint, Ms. Piermarini had not filed an EEOC charge and thus

14 could benefit from the single filing rule. Moreover, the case law is more nuanced than

15 Microsoft represents. In Gitlitz, the plaintiff invoking the single filing rule had

16 completed the EEOC complaint process but failed to file suit within the 90-day

17 limitations period. 129 F.3d at 558. Because the plaintiff had "receive[d] a right-to-sue

18 letter," the court concluded that he could not skirt the 90-day statute of limitations laid

19 out in that letter. Id. Here, Microsoft acknowledges that Ms. Piermarini's charge

20 remains pending, and thus the limitations period has not even begun, let alone run.

21 (Reply at 11.) Thus, Ms. Piermarini is not, as the plaintiff in Gitlitz was, attempting to

22 revive an untimely claim. See 129 F.3d at 558.

ORDER- 28

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 2P9agoef 5209 of 50

1

Because the single filing rule permits Ms. Piermarini to rely on Ms. Moussouris's

2 EEOC charge, Ms. Piermarini is not required to exhaust her administrative remedies.

3 Ms. Moussouris' s EEOC complaint put Microsoft on notice of the claims at issue, thus

4 negating the need for Ms. Piermarini's additional filing. See Foster, 365 F.3d at 1197.

5 Accordingly, the court denies Microsoft's motion for summary judgment on this ground.

6

3. Disparate Treatment Claims

7

Title VII prohibits employers from taking adverse employment action against "any

8 individual ... because of such individual's race, color, religion, sex, or national origin."

9 42 U.S.C. § 2000e-2(a). Disparate treatment occurs when "an employer has treated a

10 particular person less favorably than others because of a protected trait." Ricci v.

11 DeStefano, 557 U.S. 557, 577 (2009). A plaintiff can establish a prima facie case of

12 intentional discrimination by showing that (1) they belong to a protected class; (2) they

13 were qualified for their positions; (3) they suffered an adverse employment action; and

14 (4) other similarly situated employees were treated more favorably. Godson v. Hunt

15 Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (citing McDonnell Douglas Corp. v.

16 Green, 411 U.S. 792, 802 (1973)). The burden of demonstrating a prima facie case is

17 "not onerous." Burdine, 450 U.S. at 255. Once a plaintiff establishes a prima facie case,

18 the burden shifts to the employer to articulate "some legitimate, nondiscriminatory

19 reason" for its adverse employment actions. McDonnell, 411 U.S. at 802. If the

20 employer articulates a legitimate, nondiscriminatory reason, the burden shifts back to the

21 plaintiff to show that the proffered reason is a pretext for discrimination. !d. at 804.

22 II

ORDER-29

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1

Microsoft argues both that Plaintiffs cannot establish a prima facie case and that

2 they cannot show Microsoft's legitimate, nondiscriminatory reasons were pretextual.

3 (MSJ at 11-19.) The court disagrees with both arguments.

4

a. Prima Facie Case

5

Microsoft first argues that none of the Plaintiffs suffered an adverse employment

6 action. (See MSJ at 11-1 7.) But ample evidence in the record allows a jury to fmd

7 otherwise. In the context of a disparate treatment claim, an adverse employment action is

8 one that "materially affect[s] the compensation, terms, conditions, or privileges of ...

9 employment." Chuang v. Univ. ofCal. Davis, Bd. OfTrs., 225 F.3d 1115, 1126 (9th Cir.

10 2000). Here, each Plaintiff indicates that she was denied at least one promotion over the

11 course of her employment. Ms. Moussouris sought a promotion to Level65 in both 2012

12 and 2013 (Moussouris Interr. at 12, 24; Moussouris Dep. at 280:8-12); Ms. Muenchow

13 sought a promotion to Level63 in both 2014 and 2015 (Muenchow Dep. at 60:8-61 :24);

14 and Ms. Piermarini sought a promotion to Level 65 in 2014 (Piermarini Dep. at

15 88:18-89:9). Microsoft denied all of those promotions. Standing alone, the promotion

16 denials, which undoubtedly affected compensation and terms of employment, qualify as

17 adverse employment actions. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122

18 (9th Cir. 2004) ("Failure to promote is a common manifestation of disparate treatment.").

19

Microsoft suggests that the denied promotions are not adverse employment actions

20 because Plaintiffs' expert Hemy Farber's aggregate statistical model shows that Plaintiffs

21 were "not expected to be promoted" at those times. (See MSJ at 11, 16.) In other words,

22 Microsoft purports that because Dr. Farber's model did not predict a promotion, the

ORDER- 30

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1 failures to promote are not adverse actions. (See id.) There are two problems with this

2 argument. First, Microsoft offers no case law interpreting adverse actions in this way-

3 that is, predicating whether an action is adverse on the predictions of a statistical model.

4 (See generally MSJ at 11, 16.) Second, the court is not convinced that it is appropriate to

5 apply an aggregate regression model-which analyzes the group as a whole-to predict

6 an individual's outcome. (See Resp. at 18 n.25.)

7

Moreover, Plaintiffs produce evidence of negative performance reviews.

8 Undeserved performance ratings may constitute adverse employment decisions where

9 such ratings lead to negative consequences. See McMillan v. Abbott Labs., Inc.,

10 No. C10-1708RAJ, 2013 WL 1003136, at *6 (W.D. Wash. Mar. 13, 2013). Each

11 plaintiff introduces not only evidence of negative performance ratings but also how those

12 ratings are linked to salary increases, bonuses, stock awards, and promotions. Ms.

13 Moussouris's rating in 2013 was bumped down from a 1 to a 2 (Moussouris Interr. at 24);

14 Ms. Muenchow repeatedly received comments that her communication style was "too

15 direct" and never received the highest performance rating13 (see Microsoft Docs. at

16 MSFT318, MSFT324); and Ms. Piermarini was ranked in the middle 70% of her peer

17 group rather than the top 20% and received negative feedback in 2015 and 2016 (id. at

18

13 Microsoft's reliance on Ms. Muenchow's self-evaluations are unavailing. Microsoft is

19 correct that an employee's self-ratings may bolster evidence of poor performance. See Wei! v.

Citizens Telecom Servs. Co., LLC, No. C15-0835JLR, 2016 WL 5851868, at *7 (W.D. Wash.

20 Oct. 6, 2016). Although the record contains some self-evaluations where Ms. Muenchow
acknowledged her areas of growth, it also contains evidence that Ms. Muenchow believed she

21

deserved higher ratings than she received. For instance, in some years, Ms. Muenchow gave herself a higher rating than her manager did. (See, e.g., Microsoft Docs. at MSFT3 63.) Thus,

there remains a genuine dispute of material fact whether Ms. Muenchow's self-evaluations
22 corroborate "poor performance." (See MSJ at 14-15.)

ORDER- 31

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 3P2agoef 5302 of 50

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 3P3agoef 5303 of 50

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 3P4agoef 5304 of 50

1 promoted above Ms. Piennarini despite having less tenure at Microsoft. (Piermarini

2 Interr. at 15; Lee Decl. ,-r 25.) The parties disagree on Mr.

promotion history at

3 Microsoft, presenting a genuine dispute of material fact for a jury to resolve.

4

On top of the identified comparators, Plaintiffs also proffer evidence of unnamed

5 male employees who share the same Profession and Discipline, similar age and tenure at

6 Microsoft, and the same peer group as Plaintiffs. (Gilgenbach Decl. ,-r 2.) After

7 controlling for these factors, the data revealed 286 comparable men receiving greater

8 compensation or faster promotion. than Ms. Moussouris, ,_24 comparable men for Ms.

9 Muenchow, and 4 comparable men for Ms. Piermarini. (Id. ,-r,-r 3-5.) Some of these

10 comparators received the same performance ratings Plaintiffs did, had the same job title,

11 and even worked in the same office. (See id. Tbl. 1-2.) The data concerning unnamed

12 male comparators further reinforces the court's conclusion that Plaintiffs have provided

13 sufficient evidence to establish a triable issue of fact on the question of similarly situated

14 individuals.

15

Microsoft may be correct that other differences ultimately render the comparators

16 not similarly situated in all material respects, but given the evidence Plaintiffs have put

17 forth-all of which must be believed-there is a question of fact for the jury, and not the
I
18 court, to determine. See Anderson, 477 U.S. at 255. Plaintiffs have met their "minimal"

19 burden at this stage to withstand summary judgment. See Wallis, 26 F.3d at 889.

20

b. Legitimate, Nondiscriminatory Reason and Pretext

21

"Once a prima facie case is established ... summary judgment for the defendant

22 will ordinarily not be appropriate on any ground relating to the merits because the crux of

ORDER- 34

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 3P5agoef 5305 of 50

1 a Title VII dispute is the 'elusive factual question of intentional discrimination."' Lowe

2 v. City ofMonrovia, 775 F.2d 998, 1008 (9th Cir. 1985), amended, 784 F.2d 1407 (1986)

3 (internal emphasis removed) (quoting Burdine, 450 U.S. at 255 n.8). Nonetheless,

4 Microsoft maintains that even if Plaintiffs could establish a prima facie case, undisputed

5 evidence establishes that Microsoft had legitimate, nondiscriminatory reasons for its

6 actions. (MSJ at 17-18.) Specifically, for Ms. Moussouris, Microsoft argues that her

7 problems working with others, as evidenced in her reviews, provide "ample evidence of

8 legitimate nondiscriminatory reasons" for the denial of her promotion and poor reviews.

9 (Id.) For Ms. Muenchow, Microsoft relies on her need to improve "communication,

10 coordination, and teamwork skills." (Id. at 18.) And lastly, for Ms. Piermarini,

11 Microsoft points to areas of improvement, such as her product knowledge and

12 communication with other sales teams, that were discussed in her performance reviews.

13 (Id. (citing Microsoft Docs. at MSFT11019, MSFT11031-32).)

14

To demonstrate a legitimate, nondiscriminatory reason, "'the defendant must

15 clearly set forth, through the introduction of admissible evidence,' reasons for its

16 employment decision which, if believed by the trier of fact, would support a finding that

17 the employment action was not a result ofunlawful discrimination." Noyes v. Kelly

18 Servs., 488 F.3d 1163, 1169 (9th Cir. 2007) (quoting Burdine, 450 U.S. at 255). The

19 court notes that for some of the Plaintiffs, Microsoft articulates reasons that occurred at

20 different times than the challenged actions. For example, the only performance reviews

21 Microsoft identifies for Ms. Piermarini occurred in 2015 (see Microsoft Docs. at

22 MSFT11019,,MSFT11031-32), but Ms. Piermarini also challenges Microsoft's failure to

ORDER- 35

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 3P6agoef 5306 of 50

1 promote her in 2014 (see Piermarini Dep. at 88:18-89:9, 94:15-96:5). Similarly, the

2 majority of Ms. Muenchow's self-evaluations that Microsoft relies on pertain to her

3 performance from 2003 to 2010, and not 2014 and 2015-when she argues she should

4 have been promoted. (See MSJ at 5-6 (citing Microsoft Docs. at MSFT367 (2003), 373

5 (2004), 387 (2005), 336-37 (2006); Pis. Docs. at P862 (2007), P85 (2008), P804 (2009),

6 P798 (2010)).)

7

But even assuming that Microsoft has satisfied its burden of producing legitimate,

8 nondiscriminatory reasons, there is sufficient evidence in the record to raise a genuine

9 dispute of material fact regarding whether those reasons are pretextual. Plaintiffs may

10 establish pretext through either direct or indirect evidence. See Burdine, 450 U.S. at 256.

11 When the evidence is direct, courts "require very little evidence to survive summary

12 judgment." Lam v. Univ. ofHaw.,40 F.3d 1551, 1564 (9th Cir. 1994) (internal quotation

13 marks omitted) (quoting Sischo-Nownejad v. Merced Cmty. Col!. Dist., 934 F.2d 1104,

14 1111 (9th Cir. 1991)).

15

Comments that reflect "stereotypical images of men and women" are direct

16 evidence of sex discrimination. Lindahl v. Air France, 930 F.2d 1434, 1439 (9th Cir.

17 1991); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) ("[W]e are

18 beyond the day when an employer could evaluate employees by assuming or insisting

19 that they matched the stereotype associated with their group."); Maxwell v. Virtual Educ.

20 Software, Inc., No. C09-0173RMP, 2010 WL 3120025, at *8 (E.D. Wash. Aug. 6, 2010)

21 ("Gender stereotyping is direct evidence of sex discrimination."). In Lindahl v. Air

22 France, comments that female candidates were "nervous" and "emotional" qualified as

ORDER- 36

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1 evidence that the employment decision was made on the basis of gender stereotypes. 930

2 F.2d at 1439. These comments suggested that the proffered justifications for the

3 challenged actions were pretextual, and thus the court denied summary judgment. !d.

4

Here, Plaintiffs present similar evidence to suggest that the negative comments on

5 their performance reviews were themselves sexist. Ms. Moussouris's performance rating

6 · in 2013 was downgraded because managers found her ''too aggressive." (Moussouris

7 Interr. at 24); see Hopkins, 490 U.S. at 250 ("[A]n employer who acts on the basis of a

8 belief that a woman cannot be aggressive, or that she must not be, has acted on the basis

9 of gender.") Microsoft faults Ms. Muenchow's performance for similar reasons-that

10 she was "too direct" in her communication. (See, e.g., Microsoft Docs. at MSFT 324.)

11 Plaintiffs testify that men acting the same way were not given the same feedback. (See,

12 e.g., Moussouris Dep. at 259:17-23; Muenchow Dep. at 164:18-21 (stating that she has

13 never witnessed male colleagues criticized for being "too direct").) Ms. Piermarini's

14 manager faulted her in 2015 for child care responsibilities. and deemed her subsequent

15 reaction as too "emotional" (Pls. Docs. at P5948-49), critiques that were not made

16 towards her male colleagues (Piermarini Dep. at 140:8-16, 143:8-23). Plaintiffs further

17 identify male colleagues who were given poor feedback on the "how" of their work but,

18 instead of being critiqued, were subsequently promoted. (See Moussouris Dep. at

19 140:18-23, 141:4-18.)

20

Additionally, the performance reviews Microsoft relies on contain largely positive

21 comments, raising doubts as to whether the identified areas for growth justify the adverse

22 actions. For example, although Ms. Moussouris's manager recognized that she can

ORDER- 37

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 3P8agoef 5308 of 50

1 improve "when working in the more challenging team situations," he explicitly cabined

2 that critique by noting that it "should not outweigh [her] overall contribution." (Id. at

3 MSFT160.) Elsewhere in the review, Ms. Moussouris is described as "an effective

4 collabo.rator," who is "successful in engaging business groups on unpopular ideas" and

5 possesses "diplomatic abilities in bringing technical, political, and competitive elements

6 together." (Id. at MSFT158-59.) Similarly, Ms. Muenchow's manager labeled her "an

7 established leader" on the team and qualified her areas of improvement as ways to "have

8 even more broad impact." (Pls. Docs. at P878.) Ms. Piermarini received consistently

9 positive comments up until the 2015 review-on which Microsoft solely relies-which

10 was after she had complained about her manager's behavior. 14 (See Microsoft Docs. at

11 MSFT595-96, MSFT11031-32.)

12

The court concludes that Plaintiffs' evidence of discriminatory motive is sufficient

13 to raise a genuine dispute of fact. Plaintiffs produce gendered statements and other facts

14 that could call into question Microsoft's proffered reasons for the adverse actions. A

15 reasonable jury could find, from the facts described above, that those stated reasons are

16 mere pretext for a discriminatory motive. Accordingly, the court denies summary

17 judgment on Plaintiffs' disparate treatment claims.

18 II

19

14 Microsoft contends that Plaintiffs' "subjective personal judgments" of their own

performance are not sufficient to overcome summary judgment. (Reply at 5-6.) But Plaintiffs

20 provide more than just their own opinions: They provide positive performance reviews and other
objective evidence of managers giving feedback rooted in gender stereotypes. (See, e.g., Pls.

21

Docs. at P5948-49.) Thus, the evidence here is distinguishable from that in Griffin v. Boeing Co., No. C13-0038RAJ, 2015 WL 13333180 (W.D. Wash. June 25, 2015), where the plaintiff

22

based her argument "entirely on her subjective opinion of her own competence as compared to her coworkers." See id. at *4.

ORDER- 38

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 3P9agoef 5309 of 50

1

4. Disparate Impact Claims

2

Disparate impact claims challenge "a facially neutral policy or practice that causes

3 a disparate impact on a protected group, even if the employer has no intent to

4 discriminate." Williams v. Boeing Co., 225 F.R.D. 626, 634 (W.D. Wash. 2005). To

5 establish a prima facie case, a plaintiff must: (1) show a significant disparate impact on a

6 protected class; (2) identify the specific employment practices at issue; and (3) show a

7 causal relationship between the challenged practices and the disparate impact. Hemmings

8 v. Tidyman 's Inc., 285 F.3d 1174, 1190 (9th Cir. 2002). If a plaintiff establishes a prima

9 facie case, the burden shifts to the employer to show that its challenged practices are

10 consistent with a business need and that there was no less discriminatory alternative.

11 Ellis v. Costco Wholesale Corp., 285 F:R.D. 492, 505 (N.D. Cal. 2012).

12

Microsoft contends that Plaintiffs' disparate impact claims should be dismissed

13 because Plaintiffs fail to show any causal connection between the employment practice

14 they challenge-the Calibration Process-and the alleged disparate impact. 15 (MSJ at

15 21-22.) Specifically, Microsoft emphasizes that neither of Plaintiffs' experts explicitly

16 addresses causation. (Id. at 22.) But, as Microsoft concedes, an expert does not need to

17 expressly opine on causation to allow such an inference. (See Reply at 9 n.9); see also

18 Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08 (1977) ("Where gross

19 statistical disparities can be shown, they alone may ... constitute prima facie proof of a

20 II

21

15 Microsoft also repeats its argument that the Plaintiffs have not suffered an adverse

22

action. (MSJ at 21.) The court rejects this argument for the same reasons it did so in the disparate treatment context. See supra § III.B.3.a.

ORDER- 39

Case 2C:a1s5e-c2v:-1051-4c8v3-0-J1L4R83-DJLoRcumDeonctu5m1e0n*tS5E1A2LEFDile*d 0F7il/e2d3/0178/11P/a1g8e 4P0agoef 5400 of 50

1 pattern or practice of discrimination."). Instead, statistical analysis that reveals a

2 "sufficiently substantial" disparity raises an inference of causation. Paige v. California,

3 291 ,F.3d 1141, 1145 (9th Cir. 2002). When anecdotal evidence corroborates the

4 statistical analysis, the combined evidence is especially "potent." Coral Constr. Co. v.

5 King Cty., 941 F.2d 910, 919 (9th Cir. 1991).

6

Plaintiffs have produced both statistical and anecdotal evidence. Plaintiffs' expert

7 Dr. Farber found that after controlling for various factors, women in the Engineering and

8 liT Operations Professions are paid approximately 2.8% less than men-a disparity that 9 is statistically significant at a level of 21.7 standard deviations. 16 (Farber Rep. ,-r 56.)

10 Indeed, even after controlling for factors Microsoft contends Dr. Farber should have

11 accounted for, Microsoft's expert Ali Saad still found a statistically significant gender

12 gap in pay at 14.66 standard deviations. (See Saad Rep. (Dkt. ## 354-1 (sealed), 386 13 (redacted)) at 114.)17 Dr. Farber also found a disparity for women in the Solution Sales

14 Discipline of the Sales Profession: After controlling for year, age, tenure, city and state,

15 performance ratings, Discipline, Standard Title, and Career Stage, women in the Sales

16 Profession are paid approximately 1.5% less than men. (Farber Supp. Rebuttal (Dkt.

17 ## 458-1 (sealed), 459-1 (redacted)) ,-r,-r 5-7, Tbl. 1-2.)

18 //

19
16 For reference, a standard deviation of 1.96 indicates that the observed difference would
20 have occurred by chance less than 5 percent of the time. (Farber Rep. (Dkt. ## 332 (sealed), 384
(redacted))~ 41.)

21

17 Dr. Saad does not label the tables embedded in the body of his report. (See generally

22

Saad Rep.) Thus, when referring to these tables, the court cites the page number located on the bottom right-hand comer of the report.

ORDER- 40

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1

Plaintiffs additionally introduce statistical evidence regarding the gender gap in

2 promotions. Dr. Farber found that women were 2.1% less likely to be promoted from one

3 Stock Level to the next-again, a statistically significant disparity. (Farber Rep. ,-r 71.)

4 In total, he found that from 20 11 to 2015, Microsoft denied female technical employees

5 at Levels 60 to 64 518 promotions that should have been expected, a shortfall that is 6 statistically significant. 18 (!d. ,-r,-r 77, 82, Tbl. 7E.)

7

Plaintiffs also submit various anecdotal evidence, gathered from Plaintiffs'

8 experiences and other female employees' accounts, regarding the Calibration Process.

9 Many report having their performance ratings downgraded due to gendered comments.

10 (See Moussouris Interr. at 24 (recounting a performance rating downgrade during a

11 calibration meeting because her communication style was "too aggressive"); Dove Decl.

12 (Dkt. # 23 9) ,-r 5 (describing how she received zero rewards because of the Calibration

13 Process).) Others observed managers downplaying female employees' contributions

14 during the Calibration Process, va1u~ng male employees' projects "more highly" even

15 when "the technical difficulty and value to the company [were] greater for the women's

16 projects." (Sowinska Decl. (Dkt. # 245) ,-r 5.) Still others corroborate the double standard

17 Microsoft allegedly held, observing that "men [were] praised for exhibiting strong

18 opinions and being assertive, while women are admonished for the same behavior."

19 (Warren Decl. (Dkt. # 248) ,-r 7.)

20 II

21

18 Microsoft repeats its previous arguments regarding the reliability of Plaintiffs'

22

statistical evidence. (MSJ at 21.) The court has already rejected those arguments and incorporates that reasoning here. (See 4/25/18 Order at 16-23.)

ORDER- 41

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1

And lastly, Plaintiffs offer expert testimony on the aspects of the Calibration

2 Process that may be to blame. Dr. Anne Marie Ryan, a professor of organizational

3 psychology, observed a lack of "sufficient standardization" in the Calibration Process,

4 which "undermines the reliability and validity" of personnel decisions. (Ryan Rep. (Dkt.

5 ## 231 (sealed), 379 (redacted))~ 13.) In other vvords, Microsoft does not provide

6 managers sufficient guidance on how to make pay and promotion decisions. (See id. 7 ~~ 18-19.) Taken together with the statistically significant disparities and anecdotal

8 evidence regarding the subjective Calibration Process, the court finds that Plaintiffs

9 provide sufficient evidence for a reasonable trier of fact to infer causation.

10

Microsoft's contention that Plaintiffs do not identify a specific employment

11 practice is unavailing. In so arguing, Microsoft conflates the establishment of a specific

12 employment policy for individual plaintiffs and that for a class action. The case law

13 Microsoft cites concern class certification-that is, when plaintiffs have sufficiently

14 identified a specific employment practice "supplying a common question sufficient to

15 certify a class." See Dukes v. Wal-Mart Stores, Inc., 964 F. Supp. 2d 1115, 1126-27

16 (N.D. Cal. 2013); (Reply at 8-9). The court has concluded that the Calibration Process is

17 not sufficient for commonality purposes. (See 6/25/18 Order at 30-61.) That conclusion,

18 however, has limited bearing on Plaintiffs' individual disparate impact claims. Indeed,

19 courts explicitly recognize unlimited discretion as a potential basis of Title VII liability. 19

20 See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 355 (2011).

21

22

19 Microsoft also challenges Plaintiffs' disparate impact claims under state law, arguing that Washington does not recognize disparate impact claims predicated on discretion. (MSJ at

ORDER-42

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1

Because a reasonable juror could infer causation based on the presented evidence,

2 the court denies summary judgment on Plaintiffs' disparate impact claims.

3

5. Constructive Discharge

4

Microsoft seeks summary judgment on Ms. Moussouris's assertion that she was

5 "forced" to resign-and thus constructively discharged-in May 2014.20 (MSJ at 20;

6 Reply at 7-8.) Constructive discharge occurs when, looking at the totality of the

7 circumstances, "a reasonable person in [the employee's] position would have felt that

8 [s]he was forced to quit because of intolerable and discriminatory working conditions."

9 Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir. 1984). For instance, courts have

10 found constructive discharge when the plaintiff was "subjected to incidents of differential

11 treatment over a period of months or years." Watson v. Nationwide Ins. Co., 823 F.2d

12 //

13

21.) But Washington does not entirely foreclose disparate impact claims that involve discretion;

14 instead, the plaintiff need only show that the challenged employment practice "includes objective features." Shannon v. Pay 'N Save Corp., 709 P.2d 799, 806-07 (Wash. 1985), abrogated on

15

other grounds by Louisiana-Pac. Corp. v. Asarco Inc., 934 P.2d 685 (Wash. 1997) ("[A] plaintiff is not precluded from proving a case of disparate impact simply because a portion of an

16

employee evaluation process involves subjective judgments."). Plaintiffs have shown objective features of the Calibration Process, such as the grouping of employees by Stock Levels and the

forced comparison of employees to each other. (See Microsoft Docs. at MSFT2276, 17 MSFT2283.) Furthermore, at least one of Microsoft's promotion criteria-available budget-is

objective. (See id. at MSFT2235.) Although these features did not sufficiently constrain 18 discretion for commonality purposes, they are sufficient under state law to allow a disparate

impact claim to proceed. See Shannon, 709 P.2d at 806-07.

19 20 Microsoft labels constructive discharge as a "claim" (see MSJ at 20), but Ms.

20 Moussouris does not bring a constructive discharge cause of action (see SAC). Aptly so, because constn1ctive discharge is not a standalone claim like disparate impact or disparate

21 treatment. More accurately, constructive discharge is another way to establish an adverse employment action. See Winters v. City ojl(ent, No. C09-0476TSZ, 2010 WL 2595250, at *9

22

(W.D. Wash. June 22, 2010) (discussing how constn1etive discharge can satisfy the third element of the disparate treatment prima facie case).

ORDER- 43

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1 360, 361 (9th Cir. 1987). Although the Ninth Circuit "set[s] the bar high" for a showing

2 of constructive discharge, Poland v. Chertoff, 494 F.3d 1174, 1185 (9th Cir. 2007), the

3 determination of whether conditions were "so intolerable and discriminatory ... is

4 normally a factual question left to the trier of fact," Watson, 823 F.2d at 361.

5

Here, Ms. Moussouris submits sufficient evidence upon which a jury could find a

6 continuous pattern of discriminatory treatment. For example, starting in January 2014,

7 Ms. Moussouris claimed that her manager required her to provide extra documentation

8 for menial tasks that had already been approved. (Moussouris Dep. at 174:21-178:14.)

9 Moreover, he began taking away her responsibilities and transferring them to a

10 lower-leveled male colleague. (Id. at 176:4-16.) Evidence reveals that in the evaluation

11 process, an employee's performance rating-and subsequently her salary increases, stock

12 awards, and bonuses-depends on what projects or work she has completed in the

13 previous fiscal year. (See Microsoft Docs. at MSFT88; Ritchie Dep. at 231:20-25,

14 325:6-10.) Even after Ms. Moussouris complained to HR about the situation, her

15 manager continued to "scop[e] [her] out of[her] role." (Microsoft Docs. at

16 MSFT16284.) A reasonable jury could find, on this record, that after facing two lost

17 promotions and performance rating downgrades due to gendered reviews and receiving

18 no relief from her HR complaints, Ms. Moussouris was constructively discharged. See

19 Zamora v. Sacramento Rendering Co., No. Civ. S-05-00789 DFL KJM, 2007 WL

20 137239, at *5 (B.D. Cal. Jan: 17, 2007) (finding an adequate factual basis to proceed to

21 trial where evidence showed that the employer failed to prevent further misconduct and

22 would have required the plaintiff to accept a position with less responsibility).

ORDER- 44

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1

Microsoft contends that because Ms. Moussouris remained in her position and did

2 not immediately quit, she could not have been constructively discharged. (MSJ at 20.)

3 Continuing to work in intolerable conditions is, as Microsoft purports, "not the action[] of

4 someone who finds his working conditions so intolerable that he felt compelled to

5 resign." Poland, 494 F.3d at 1185. But an employee vvho "quits without giving [her]

6 employer a reasonable chance to work out a problem has not been constructively

7 discharged." Id. at 1186. And giving Microsoft that chance is precisely what Ms.

8 Moussouris attempted to do in her last months: filing a formal HR complaint in the

9 hopes that the problem would be "work[ed] out." See id.; (see Moussouris Dep. at

10 203:11-12, 205:1-23.) After filing the complaint and seeing that the situation had not

11 improved, Ms. Moussouris did not stay so long-about two months-as to defeat her

12 constructive discharge claim as a matter oflaw.21 See McKenzie v. San Joaquin Valley

13 Col!., Inc., No. EDCV 16-00769 JGB (DTBx), 2017 WL 2129685, at *9 (C.D. Cal. May

14 15, 2017) (continuing to work for more than a year indicated no intolerability); Poland,

15 494 F.3d at 1185 (continuing to vvork for eight months indicated no intolerability).

16

Accordingly, the court denies Microsoft's motion for summary judgment as to

17 constructive discharge.

18 II

19

21 Nor do Ms. Moussouris's "positive perfonnance reviews" or her "considerable pay"

affect constn1ctive discharge. (See Reply at 7.) "[T]he fact that that [a] plaintiff was able to

20 competently perform his job and meet expectations does not prevent him from asserting that his working conditions were intolerable." Juell v. Forest Pharm., Inc., 456 F. Supp. 2d 1141, 1152

21

(E.D. Cal. 2006). In Juell, the fact that the plaintiff received "above-average performance reviews" and that he "was paid a six-figure salary" did not alter the court's conclusion that a

22

genuine dispute of material fact existed over the constructive discharge issue. Id. The court reaches the same conclusion here.

ORDER-45

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1

6. Retaliation Claims

2

Microsoft next challenges Ms. Moussouris and Ms. Piermarini's retaliation claims.

3 Under Title VII, a plaintiff may establish a prima facie case of retaliation by showing that

4 (1) she engaged in protected activity; (2) the employer subjected her to an adverse

5 employment decision; and (3) there was a causal link between the protected activity and

6 the employer's action. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212

7 F.3d 493, 506 (9th Cir. 2000). As to Ms. Moussouris, Microsoft argues that her

8 retaliation claim based upon her 2008 complaint is time-barred. (MSJ at 23.) As to Ms.

9 Piermarini, Microsoft argues that she cannot show she suffered an adverse employment

10 action or that the adverse action was linked to the protected activity. (!d.) The court

11 disagrees with both arguments.

12

First, Ms. Moussouris's retaliation claim survives summary judgment. In addition

13 to her 2008 complaint, Ms. Moussouris made a formal HR complaint in 2014, and that

14 protected activity anchors a timely retaliation claim.22 (See SAC~~ 71-72; Resp. at 22

15 n.7.) Because Ms. Moussouris's 2008 complaint is not the basis of her retaliation

16 claim,23 the court denies summary judgment on Ms. Moussouris' s retaliation claim.

17
22 For the first time in its reply, Microsoft argues that Plaintiffs fail to sufficiently allege a
18 claim ofretaliation based on events occurring in 2014. (See Reply at 10-11.) The court "need
not consider arguments raised forthe first time in a reply brief," Zamani v. Carnes, 491 F.3d
19 990, 997 (9th Cir. 2007), because doing so essentially prevents the nonmoving party from
responding, see Cascade Yarns, Inc. v. Knitting Fever, Inc., No. C10-0861RSM, 2014 WL
20 11881033, at *3 (W.D. Wash. Apr. 14, 2014). Thus, the court does not reach Microsoft's
argument regarding Ms. Moussouris's 2014 complaint.

21

23 Because the 2008 complaint is not the basis, the court also does not reach Microsoft's

22

contention that Ms. Moussouris cannot show her bonus was adjusted downwards because of her 2008 complaint. (See MSJ at 23.)

ORDER-46

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1

Second, Ms. Piermarini's retaliation claim also survives summary judgment.

2 Microsoft's contention that Ms. Piermarini did not suffer an adverse employment action

3 after her April 2015 complaint belies the record. After the complaint, she received-for

4 the first time-negative feedback on her next annual review and negative peer comments

5 that may have been solicited by the manager she complained about. (See Microsoft Docs.

6 at MSFT595-96, MSFT11031-32; Piermarini Dep. at 229:13-17, 230:4-14.) These

7 negative reviews affected her salary increase and bonuses. (See 2d Piennarini Charge

8 -;I 29.) Moreover, after Ms. Piermarini's participation in this suit, her manager began

9 expanding her workload to the extent that at least one other manager believed that

10 Microsoft was "trying to set [her] up for failure." (Id. -;I~ 27-28.)

11

Ms. Piermarini has also submitted enough evidence on causation. "[C]ausation

12 may be established based on the timing of the relevant actions." Passantino, 212 F.3d at

13 507. Specifically, "when adverse employment decisions are taken within a reasonable

14 period of time after complaints ... retaliatory intent may be inferred." !d. Such evidence

15 "based on timing can be sufficient to let the issue to go to the jury." Id. In Coszalter v.

16 City ofSalem, 320 F.3d 968 (9th Cir. 2003), the court held that three to eight months was

17 "easily within a time range that can support an inference of retaliation." !d. at 977. Here,

18 the adverse employment actions occurred at the next annual review, about five months

19 after Ms. Piermarini's complaint. (See Piermarini Dep. at 228:10-18; Microsoft Docs. at

20 MSFT11031-32.) Even less time occurred between Ms. Piermarini's deposition and the

21 subsequent increase in her workload. (2d Piermarini Charge~~ 26-28.) This temporal

22 proximity is sufficient to permit a reasonable juror to infer causation.

ORDER-47

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1

7. Punitive Damages

2

Lastly, Microsoft seeks summary judgment on Plaintiffs' request for punitive

3 damages. (MSJ at 24; Reply at 12.) Microsoft flrst argues that punitive damages are not

4 available under the WLAD. (MSJ at 24.) Washington courts "refuse[] to characterize

5 punitive damages as actual damages" available under the WLAD. Blaney v. Int'l Ass 'n of

6 Machinists & Aerospace Workers, Dist. No. 160, 87 P.3d 757, 763 (Wash. 2004); see

7 RCW 49.60.030(2). Plaintiffs do not contend otherwise. (See Resp.) Thus, the court

8 grants summary judgment on Plaintiffs' request for punitive damages under state law.

9

However, punitive damages are available under federal law. Pursuant to Title VII,

10 punitive damages are available only when the employer acts with "malice" or "reckless

11 indifference" to the plaintiffs federally protected rights. Kolstad v. Am. Dental Ass 'n,

12 527 U.S. 526, 535 (1999). This inquiry is a subjective one concerning the employer's

13 motive or intent. ld. at 536. An employer acts with "reckless indifference" when it

14 "discriminate[s] in the face of a perceived risk that its actions will violate federal law."

15 Id. In other words, an employer may be subject to punitive damages when it has

16 "knowledge that it may be acting in violation of federal law," even if it has no

17 "awareness that it is engaging in discrimination." Id. at 535.

18

In Passantino v. Johnson & Johnson Consumer Products, Inc., the Ninth Circuit

19 observed that punitive damages are not available "when the employer ... reasonably

20 believes [its] conduct is lawful." 212 F.3d at 515. However, sufficient evidence existed

21 for a jury to conclude that the employer "could not have reasonably believed that its

22 conduct was lawful." Id. at 516. For instance, evidence suggested that the employer

ORDER-48

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2 MSFT65726-29.) From this evidence, a jury could conclude that Microsoft engaged in a

3 pattern of discriminatory action over years that resulted in gender disparities, and that

4 Microsoft knew of the problem but did not address it. See Passantino, 212 F.3d at

5 515-16. In short, a jury could conclude that Microsoft "could not have reasonably

6 believed that its conduct was lawfu1."24 See id. at 516. Accordingly, the court denies

7 summary judgment on the issue of punitive damages under Title VII.

8

IV. CONCLUSION

9

For the foregoing reasons, the court GRANTS in part and DENIES in part

10 Microsoft's motion for summary judgment (Dkt. ## 403 (sealed), 489 (redacted)).

11 Specifically, the court GRANTS judgment to Microsoft on Plaintiffs request for punitive

12 damages under the WLAD. The court DENIES the remainder of the motion.

13

The court DIRECTS the Clerk to provisionally file this order under seal and

14 ORDERS the parties to meet and confer regarding the need for redaction. The court

15 further ORDERS the parties to jointly file a statement within ten (10) days of the date of

16 this order to indicate any need for redaction.

~

17

Jl Dated this day of July, 2018.

18

JAMES L. ROBART

19

United Sta es District Judge

20

21

24 Microsoft counters with evidence of its good faith efforts, including its anti-discrimination policy, its budget for diversity and inclusion initiatives, and its BRIT team.

(MSJ at 24; Reply at 12.) But the court may not weigh Microsoft's evidence against Plaintiffs'. 22 See Anderson, 477 U.S. at 255. Thus, there remains a genuine dispute of material fact.

ORDER- 50