IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

SAGE REDWIND,

Plaintiff,

v.

WESTERN UNION, LLC,

Defendants.

Civ. No. 3:14-cv-01699-AC 

FINDINGS & RECOMMENDATIONS

ACOSTA, Magistrate Judge:

PlaintiffSageRedwind (“Redwind”)filedthislawsuit againsther employer,WesternUnion,LLC

(“WesternUnion”)fordefamation,discrimination,harassment,retaliation, anddiscriminatorypaypractices. 

After a lengthy discovery period, Western Union now files for summary judgment (ECF No. 95) and

argues no reasonable jury could find in Redwind’s favor. After careful review of the record, the court

concludes Western Union is entitled to summary judgment on each of Redwind’s claims.

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Factual Background

In February2008, Western Union hired Redwind as a territorymanager in the inner-mountain

corridor region. (Decl. of Carla Anthonyin Supp. Of Def.’s Mot. for S.J. (“AnthonyDecl.”) ¶ 5.) Her

startingsalarywas $40,000. (Id.) Eventually, herjob titlewas changedto “AccountExecutiveMT.” (Id.

¶ 8; Am. Decl. Of Amanda Bollinger Crespo in Supp. for Def.’s Mot. For S.J. (“Crespo Decl”) Ex. 1

(“Redwind Decl.) at 27:11-28:9.) 

As part of the hiring process, Redwind signed an offer letter and an employment agreement

(AnthonyDecl.Ex 5;Decl. ofSageRedwind inSupp. ofPl.’sResp. inOpposition toDef.’sMot.forS.J.

(“RedwindDecl.”)Ex.38.) Bysigningthe employment agreement,Redwindaffirmedthatshehadreceived

a copyof theWesternUnionCode ofConduct (the “Code ofConduct”) and that she agreed “to abide by

the terms outlined in thatdocument.” (AnthonyDecl.Ex.5at2.) She also agreed to relinquishanyinterest

she had in intellectual propertycreatedduring hertenurewithWesternUnion. (Id. at 1.) The “Ownership

and Assignment of Intellectual Property” portion of the employment agreement reads as follows:

Bysigning below,Iherebyassign and agree to assign,free of anyobligationwhatsoever,

to the Companyas well as its or their successors, assigns, or nominees,myentire right,

title, and interest in anydevelopments, designs, patents, inventions and improvements,

trade secrets,trademarks,servicemarks, corporate names, domain names, copyrightable

subjectmatter(collectively, “Intellectual Property”), or proprietaryinformationwhich I

havemade, ormaymake,inwhole orin part, and eithersolelyorjointlywithothers,while

Iamemployed bytheCompanyand/orwiththeuseofthe time,material orfacilities ofthe

Company, and/orresultingfrom anytasks assigned tomeorworkperformedbyme oron

behalf of the Company

(Id.) 

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Redwind has been a consistently good employee. She has received a raise each yearshe has

worked for Western Union, including 2015, when her current manager, Craig Pinnegar (“Pinnegar”)

requested that her base salarybe increased to $51,768. (AnthonyDecl. ¶ 15.) Redwind is also eligible

to earn up to $20,000 per year in merit-pay incentives. (Id.) Due to her performance and merit-pay

increases,which are usuallyamongthe highest of allAccountExecutiveMTsinherregion,Redwindisthe

third highest-paid Account Executive MT. (Id. ¶ 18.) Only two Account Executive MTs, Charles

Dalmadge andScottJepperson,have a higherbase salarythanRedwind, but bothCharles andDalmadge,

atthirty-four and fourteen yearswithWesternUnion respectively, have significantlymore senioritythan

Redwind. (Id.) 

As a result ofRedwind’s high performance,she has consistentlybeen rated highlyin performance

reviews. Since 2011, when Pinnegar became her manager, she has repeatedly received year-end

performance ratings of “exceeds expectations.” (Decl. ofCraigPinnegarinSupp. ofDef.’sMot.forS.J.

(“Pinnegar Decl.”) ¶ 9.) Pinnegar gave Redwind a three on a four-point scale for her 2011 year-end

performance review. (Id.) Shortlythereafter,WesternUnion adopteda five-pointratingscale,with five

beingthe highest. (Id. ¶13.) Underthe newscale,Redwind hasreceived an overallrating offour-out-offive each year. (Id. ¶¶ 13, 25, 33.) Pinnegar has “never given anyAccountExecutiveMTa higher overall

rating than ‘Exceeds Expectations.’” (Pinnegar Decl. ¶ 8.) Redwindwas also awardedmeritincreases

during each year-end performance review. (Id.) In 2011 and 2013, Redwind was awarded a merit

increase of 4%. (Id. ¶¶ 9,25.) She was given an increase of 4.5% in 2012 and 2014. (Id. ¶¶ 13, 33.) 

In 2011, 2013, and 2014,Redwind was given the highest meritincreases of anyAccount ExecutiveMT

in her region. (Id. ¶¶ 9, 13, 25, 33.)

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In November 2012, Pinnegar traveled to Portland and Seattle to meet with his subordinates in

those cities. (Pinnegar Decl. ¶ 12.) He invited Redwind and two of her colleagues to have lunch in the

Portland area, but one ofRedwind’s co-workerswas unable to attend. (Id.) Afterthemeetingconcluded,

Pinnegar drove toSeattle tomeetwith four otherAccount ExecutiveMTs underPinnegar’ssupervision

inTukwilia,Washington. (Id.) He chose tomeet with those foursubordinates because two lived in Idaho

and Spokane, Washington, so theywould have had to travel regardless ofwhere the meetingwas held. 

(Id.) Redwind asserted that Pinnegar had “excluded” herfrom theTukwiliameetingfor discriminatory

reasons. (Third Amended Complaint (“TAC”) at 8.)

InAugust 2012, WesternUnionManagerJudyChen (“Chen”)was visitingthePortland area to

work on recruitment strategies. (Redwind Depo. 115:5-19.) Redwind droveChen to variouslocations

in thePortland area toshowherthe area and highlight business districtsfor potential expansion. (Id.) At

one point duringthe drive, Chen told Redwind, “you don’t actIndian.” (Id. at 113:19-21.) Later,Chen

made comments about Redwind’s nose, askingRedwind “where doyoufindglassesthat fit your nose?” 

(Id. at 113:22-25.) Chen also askedRedwindwhetherthe bump on her nose interferedwith her breathing,

and whether the bump on her nose causes her glasses to slide off. (Id. at 114:1-7.)

On February 19, 2013, Chen made a posting on a Salesforce.com (“Salesforce”), a businesscentric social media website onwhichWesternUnion employeesfrequentlycommunicated. (Decl. of

RandallAcocelli inSupp. ofDef.’sMot.forS.J.(“Acocelli Decl.”)Ex. 8.) The posting thanked two of

Redwind’s colleagues,StacyBlake andWendleRaping(“Raping”),fortheirhardwork and praised them

for “outstanding teamworkwith Seattle [C]hinese recruitment.” (Id.) Redwind responded to the post

requesting “empirical statistics” to support Chen’s praise and explained, “Ifind thatwhenpraise is given

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on [a] nationwide scale like this, I am veryinquisitive and cautious of the [i]mage that this new praise

createswithin themental framework of the upper management that does not get to work in the fieldsin

whichpraise isbeingdistributed.” (Id.) Redwindthenmadea secondpostingwhichincludedthefollowing:

Considerthe effect of hypotheticalsyllogism,ifAistoB, andwill considerAyour praise

andBbeingthatwhich youpraise, andBistoC,C being thework ethics and/or outcome

of appraisal,then asthe audiencemember orSAMthenatural problemofthislogic isthat

upper management and those with no direct empirical knowledge of the situation will

naturallyassumeAin relationtoC,in otherwords,theysee your praise (Aasfillingin the

gaps of actual and true empirical evidence) and due to the nature oflogic, theyassumeC

whichwould be the outcome ofthe desired praise,(whichmayormaynot be accurately

distributed).

(Id.) Raping took issue with Redwind’s comments and replied to Redwind, “[i]f I am reading your

comments correctly, are u [sic] trying to imply that [JudyChen’s] praise of[]StacyBlake and I[sic] are

unwarranted?” (Id.) Thereafter,Redwindposted fourmore timesto the threadinwhichshe explained she

was trying to “remedy a disservice.” (Id. at 2.) Raping reported the incident to Pinnegar via email on

February21,writing “Is all this reallynecessary? I am trulyat a [loss] forwords here.” (PinnegarDecl.

Ex. 3 at 1.)

Inearly2013,Pinnegar completedRedwind’s2012year-endperformance review,givingRedwind

a ratingoffour-out-of-five or “exceeds expectations.” (PinnegarDecl. ¶16.) RedwindmetwithPinnegar

on March 5, 2013 to discuss the review. (Id.) AfterRedwind asked Pinnegar how she could receive a

higher grade,Pinnegar “identified some opportunitiesfor growth forMs.Redwind . . . .” (Id.) Pinnegar

toldRedwind thatshe seemed to be “clashing”withone of her co-workers afterRedwind accused the coworker of being“negligent.” Pinnegar also explained thatthewayRedwind spoke about her coworkers

was perceived bysome to be “condescending, abrupt, and short.” (Id. ¶16(a))(internal quotationmarks

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omitted.) PinnegaralsocritiquedRedwind’sprofessionaljudgmentbycitingRedwind’sresponsetoChen’s

Salesforce posting. (Id. ¶ 16(b).) 

RedwindtookoffensetoPinnegar’scriticisms andemailedsupervisor,RandyAcocelli(“Acocelli”)

to object. (Decl. of Marcus McCarty in Supp. of Def.’s Mot. For S.J. (“McCarty Decl.”) Ex. 1 at 2.) 

AcocellilargelyagreedwithPinnegar’s analysis, andtoldRedwindthatshewas not deservingof a five-outof-five rating, asthose ratings go onlyto people who far exceed expectations who the companycannot

afford to lose. (Id.) Redwind also took offense to Acocelli’s comments, which she described as

“discriminatory.” (Id.)

OnMarch 9, 2013, Redwind filed a complaint with theWesternUnion ethics department about

Pinnegar’s and Acocelli’s “discriminatory” statements and conduct (the “First Ethics Complaint”). 

(McCartyDecl. ¶ 4; Ex. 1.) Human ResourcesRepresentativeSheryl Eagle (“Eagle”)was assigned to

investigate the complaint. (McCartyDecl. ¶ 5.) Eagle interviewed Redwind, Pinnegar, and Acocelli

regardingRedwind’s complaints, andconductedfollow-upinterviewsofRedwindandAcocelli. (McCarty

Decl. Ex 2 at 4; Acocelli Decl. ¶ 5.) Following the investigation, Eagle concluded Pinnegar was “not

discriminating,marginalizing,or attacking[Redwind’s] character.” (McCartyDecl.Ex.2at10.) However,

Eagle recommended Pinnegar receive coaching on his communication and awareness. (Id.)

In July2013,WesternUnion finalized plansto hold a salestraininginMiami, Florida,for “high

achieving”Western union employees. (Acocelli Decl.Ex. 3.) Acocelli recommendedRedwind forthe

training due to her consistent positive performance, and on July 26, 2013, Western Union extended

Redwind an invitation to attend the training. (Id. 3.) Redwind declined the invitation because shewas

“underthe impression that training is geared toward those who need[] [to be] more efficient in a given

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subject,” and that the training“would be bettersuited forthemembers of ourteam who need assistance

indevelopingsuch skills.” (Id.) Pinnegar assuredRedwind thatthe trainingwasfor “high achievers,” and

askedRedwindwhethershe believed she had “reachedthe pointwhere [her]skills cannot be improved?” 

(Id. at 2-3.) Redwindresponded toPinnegar,sayingthat “there is alwaysroomforimprovement,” but the

literature forthe training program described the trainingastargeted at “newand experienced salespeople

who “need” to improve their approach and interpersonal skills.” (Id. at 2)(emphasis original.) Redwind

believed she did not “need” improvement in these areas and declined the invitation. (Id.)

Around the same time, Pinnegar awarded Redwind’s colleagueStephanieWatts (“Watts”) an

OutstandingAchievementAward,whichhe awardedtoRedwindthepreviousyear. (PinnegarDecl. ¶21.) 

He based his decisiononWatts’s high sales performance in the shorttime she hadbeenwiththe company. 

(Id.) Redwind thought she shouldhave received the award and askedPinnegar andAcocelliwhyshewas

not recognized for herwork. (Id.) Redwindwas notsatisfiedwith their answers, and emailedAcocelli’s

supervisorCarterHunt to raise her concerns about how the recipient of the OutstandingAchievement

Award was chosen. (Acocelli Decl. Ex 4.)

Acocelli became concerned thatRedwind’s “publicmethod ofquestioningpraise given to others

detracted fromher otherwisegood performance and undermined her position on herteam. . . .” (Acocelli

Decl. ¶ 9.) Tosharehis concernswithRedwind,Acocelliprepared amemorandumexplainingtoRedwind

howshe could improve her performance and teamwork (the “CoachingMemorandum”). (Id.) Through

the Coaching Memorandum, Acocelli explained to Redwind that some of her actions showed poor

professionaljudgment andineffective interpersonalskills. (Id.) Specifically,Acocelliraisedfive incidents

which highlighted his point:(1)Redwind’s post onSalesforcequestioningwhyChenwouldgivepraise to

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Redwind’s colleagues;(2)Redwind’sperformance reviewself-assessment,inwhichRedwindratedherself

a perfect 5 out of 5andmade several commentswhich detracted from the performance of her co-workers

andmanagers; (3)Redwind’smid-year performance review, inwhich shemade disparaging comments

about Pinnegar; (4)Redwind’s decision to decline the training inMiami; and (5)Redwind’s decision to

emailCarterHunt aboutnotreceivingtheOutstandingAchievementAward. (Id.) Acocelli concludedthat

he was concerned that Redwind “showed a real lack of tack[sic] and blatant disrespect for the leaders

directlyin yourmanagement chainaswell as peers and othersin the [WesternUnion] organization.” (Id.

at 4.)

Shortly after receiving theCoachingMemorandum,Redwind filed an ethics complaint against

Acocelli andPinnegarfor defamation and discrimination. (McCartyDecl.Ex. 3.) In particular,Redwind

complained that Pinnegar awarded Watts the Outstanding Achievement Award based on an “unfair

advantage” and that Acocelli “pretended to council and coach” her by giving her the Coaching

Memorandum,butintendedonlyto “defame [her] character andattac[k][her]personwithmore aggression

than lasttime.” (Id. at 1-2.) The ethics department assignedDirectorofEmployeeRelationsSharonKing

(“King”)to investigate the complaint and followupwithRedwind about her concerns. (McCartyDecl. ¶

8.) King andRedwind exchanged several emails about the ethics complaint. (McCartyDecl.Ex. 3 at 2-

5.) In one, Redwind assailed Acocelli’s decision to give her the CoachingMemorandum based on her

SalesforcepoststoChen,writing“Iwas potentiallybeingdiscriminated onmultiple fronts andwhen Isaw

thatJudyChen haddecided topraise a fewselected individualswith the teamforthe sameworkthatmany

individuals had accomplished, Iimmediately recognized anothertype of discrimination, based upon

favoritism . . . .” (Id.) However, Redwind did not inform King about the August 2012 incident where

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Chenmade raciallyderogatorystatements. (Id.) KingconcludedPinnegar andAcocelli violated no laws

or Western Union policies, and decided to close the complaint. (Id. at 5-6.) 

After receiving King’s decision, Redwind sent a message to Marcus McCarty (“McCarty”),

WesternUnion’sAssistantGeneralCounselofCorporateEthics andComplianceOffice, allegingthatKing

conducted an inadequate investigationof herfirst and second ethics complaints. (McCartyDecl. ¶ 9.) In

responseMcCartyreviewed thematerials producedduringthose investigations and conducted follow-up

interviewswithRedwind,Pinnegar, andAcocelli. (Id. ¶ 10.) Ultimately,McCartyagreedwithKingand

concluded that the information provided to the ethics office did not support a finding that anyWestern

Union policy was violated. (Id. ¶ 11.)

InOctober 2013,Redwind discovereda document on aWesternUnion employeewebsitewhich

she believed to represent theWesternUnion payscale. (PinnegarDecl.Ex. 2.) Based on the document,

Redwind believed shewas beingpaid belowwhat wasrequired for her position. (Id.) She immediately

emailedPinnegartoraise the issue. (Id.) Pinnegarreferred thematterto thehuman resources department,

who investigated the issue and produced a separate “payscale”which contradictedRedwind’s claims of

beingunder-compensated. (AnthonyDecl.Ex.2-3.) Thisresponse did notresolveRedwind’s complaint,

however.

In February2014, Pinnegar gave Redwind her 2013 year-end performance review. (Pinnegar

Decl.Ex. 4.) PinnegargaveRedwindan overallratingof “exceeds expectations” orfour out offive. (Id.) 

Redwindwas not pleasedwithher evaluation, and emailedDianaMartinez (“Martinez”), a senior human

resources executive, to appeal Pinnegar’s decision and request “measurable data” to support Pinnegar’s

evaluation. (PinnegarDecl.Ex. 5.) Martinez responded toRedwind,stating, “based onmyassessment,

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I have determined that . . . the evaluation of your performance for 2013 was appropriate and does not

warrant change. (Id. at 1.)

Redwindwassimilarlydispleasedwith her2014mid-year performance review. (McCartyDecl.

Ex. 8 at 1.) Notably,Redwindwas offended byPinnegar’s critique that Redwind could improve on her

“communication[] and interpersonal interactionswithmanagement and ... colleagues,which have been

strained attimes due to herfailure to engage in a respectful andproductivemanner.” (Id.) These criticisms

were conveyed to Redwind during a conference call with Pinnegar,Martinez, andRedwind. (Id. at 1.) 

Due to her dissatisfactionwith this evaluation,Redwind filed an ethics complaint against Pinnegar and

Martinez forslander and retaliation. (McCartyDecl.Ex. 7 at 1.) McCartyinvestigated the complaint by

reviewing the documents Redwind submitted and interviewing Pinnegar, Martinez, and Redwind. 

(McCarty Decl. ¶ 15.) Ultimately, McCarty agreed with Martinez that Pinnegar’s evaluations were

accurate, and emailed Redwind to inform her that he identified no violations of policy or law. (Id.)

InMarch 2014,Redwind filed a charge against WesternUnionwith theOregonBureau ofLabor

and Industries(“BOLI”)for discrimination on the basis ofrace, national origin, and sex, and for creating

a hostile work environment. (Crespo Decl. Ex. 6.) Redwind raised twelve grievances regarding the

allegedlydiscriminatoryconduct. (Id.) BOLIinvestigatedRedwind’s charge but did not find sufficient

evidence to continue the investigation, and issuedRedwind a “righttosue” letter on September 3, 2014. 

(Compl. Ex. 1 at 8.) 

InAugust 2014,LuisFelipeRodriguezVega (“Vega”),WesternUnion’sVicePresident ofU.S.

Commercial Sales, discovered one of Redwind’s postings on Salesforce which he believed violated

WesternUnion policies. (Decl.OfLuisFelipeRodriguez Vega inSupp.OfDef.’sMot.ForS.J.(“Vega

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Decl.”) ¶5.) The post caught Vega’s attention because it concluded “Copyright 2014, SageRedwind” in

violation of Western Union’s intellectual property policy. (Id. ¶ 6.) Vega also observed that the post

contained language about “eliminating” competition, adopting “hidden position[s],” and hindering the

competition’sstrategy,whichVega thought violatedWesternUnion’s antitrust policies. (Id. at ¶¶ 6-8.) 

Vega explained his concerns to a subordinate manager with the directive to“ensure his concerns were

addressed with Ms. Redwind.” (Id. at ¶ 10.) Vega’s directivewas conveyed to Pinnegar, who worked

with human resourcesto draft a warning to Redwind about her violations ofWesternUnion policy(the

“Warning”). (Pinnegar Decl. ¶ 29.) Pinnegar and Martinez gave Redwind the Warning on October 1,

2014. (Pinnegar Decl. Ex. 7.)

The same dayPinnegar issued Redwind the Warning,Redwind filed a fourth ethics complaint

againstPinnegar andMartinez fordiscrimination,retaliation, anddefamationbasedontheirdecisiontoissue

theWarning. (McCartyDecl. Ex. 10.) She argued the Warning violated Title VII and Western Union

policies because it was “false” and “unwarranted,” and that it was issued in retaliation for her BOLI

complaint. (Id. at 2.) McCartybegan investigating the complaint, and interviewedRedwind on several

occasions. (McCartyDecl. ¶ 18.) However,Redwind had filed thislawsuit priorto the interviews, and

declined to answerseveral ofMcCarty’s questions on the basis of “work product,” including questions

about whyshe believed theWarningconstituted discrimination based on her race, national origin, and

gender. (Dkt. No. 1; McCartyDecl. ¶ 18.) Ultimately, McCartyconcluded that Redwind’sSalesforce

postings violatedWesternUnion policy, and the evidencedidnotsupportRedwind’s contention that the

Warning was issued for a retaliatory or discriminatory purpose. (McCartyDecl. ¶ 22.) On that basis,

McCarty closed Redwind’s fourth ethics complaint on March 27, 2015. (Id.)

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OnApril 22, 2015, Redwind filed a fifth complaint with the Western Union ethics department

against Anthony,McCarty, andWesternUnionHumanResourcesDirectorJulia Jacobs(“Jacobs”) for

harassment,retaliation, and “increased surveillance.” (McCartyDecl. Ex. 14.) In the fifth complaint,

Redwind allegesthatAnthony,McCarty, andJacobswerenegligentin theirinvestigations of her previous

ethics complaints and closed the caseswithout just cause forretaliatoryreasons. (Id. at 2-3.) The ethics

office suspended its investigation of Redwind’s complaint pursuant to an order ofthis court onMay1,

2015, but reopened the case pursuant to a subsequent order on July 2, 2015. (McCarty Decl. ¶ 25.) 

Eventually,WesternUnion recused itselffromthe investigationand referred itto an outside investigator

because it is lodged against heads of the ethics and human resources departments.

Legal Standard

Acourtshouldgrant amotionforsummaryjudgment “ifthemovantshowsthatthere is no genuine

dispute asto anymaterial fact and themovant is entitled to judgment as amatter oflaw.” FED.R.CIV.P.

56(a). The moving party bears the burden of establishing that no issue of fact exists and that the

nonmovant cannot prove one ormore essential elements of a claimor defense. CelotexCorp. v.Catrett,

477U.S. 317, 324 (1986). Ifthemovantmeets his burden,thenonmovantmust “go beyond the pleadings

[ ] byher own affidavits. ..[to] designate specific factsshowingthatthere is a genuine issue fortrial.” Id.

(internalquotationmarksomitted). Conclusoryallegationswhich areunsupportedbyfactualmaterialsuch

as affidavits and documentaryevidence are insufficienttodefeat amotion forsummaryjudgment. Taylor

v.List, 880F.2d 1040, 1045 (9th Cir. 1989). On summaryjudgment,the court is bound to viewallfacts

ina lightmostfavorabletothenonmovant andmustdrawalljustifiable inferencesinthenonmovant’sfavor. 

Narayan v. EGI, Inc., 616 F.3d 895, 899 (9th Cir. 2010). 

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Discussion

Redwind’scomplaint allegesclaimsfordefamation,paydiscrimination,harassmentdiscrimination,

and retaliation. Western Union moves for summary judgment against each claim, and contends no

reasonable jurycouldfind inRedwind’sfavor based on the record nowbefore the court. WesternUnion

is correct on each count, and the court concludes Western Union is entitled to summary judgment.

I. Defamation.

Redwind alleges defamation based on statements made by Western Union managers and

employees. Western Union moves for summaryjudgment onRedwind’s defamation claim. It argues

Redwind failed to adequatelyplead her defamation claim with specificity. Moreover,Western Union

contendsthe statements at issue in this case are privileged underOregon lawandmaynotserve as a basis

for a defamation claim. Finally,theyargue the allegedlydefamatorystatements are opinionswhich arenot

actionable under a defamation claim.

For adefamationclaimtosurvive summaryjudgment,the plaintiffmustproduce enoughevidence

to allowa reasonable juryto find: (1)themaking of a defamatorystatement; (2) the ‘publication’ ofthe

defamatory material; and (2) a resulting special harm, unless the defamatory statement gives rise to

presumptive special harm. Mannex Corp v. Bruns, 250 Or. App. 50, 57-58 (2012). A statement is

defamatoryifit “subjects apersonto hatred, contempt orridicule ortendsto diminish the esteem,respect,

goodwill or confidence in which she is held or excited adverse, derogatory or unpleasant feelings or

opinions against her. Worley v. Ore Physicians Serv., 69 Or. App. 241, 244 (1984). Whether a

statementis capable of “capableof a defamatorymeaning” is adecisionforthe court. Id. Moreover,when

pleadinga defamationclaim, courts generallyrequire the plaintiffto specificallyidentifythedefamatory

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statements at issue and to plead those statements verbatim. Volvo N. Am. Corp v. Men’s Int’l Pro.

Tennis Council, 678 F. Supp. 1035, 1046 (S. D. N.Y. 1987) (cited favorably by Rice v. Comtek Mfg.

Of Ore, Inc., 766 F. Supp. 1539, 1541 (D. Or. 1990)).

Here,Redwindmeets her burden of pleading specific statements. Redwind allegesin theThird

AmendedComplaintthatPinnegar,Acocelli, andotherWesternUnionemployeesstatedthatshe exhibited

“poor judgment” and that she had “interpersonal skill problems,” “interaction problems” and was “too

competitive,” that she was “not a team player,” and that she showed “a lack ofteam spirit.” (TAC at 7,

9, 16.) Finally,Redwind alleges Pinnegar told hershe showed “a real lack oftact and blatant disrespect

forthe leaders directlyin hermanagement chain aswell as peers and othersinWesternunion.” (Id. at 19.) 

Redwind alleges eachofthese statements as aquotation, andclearlyallegesthe declarantin each instance. 

Redwind has met her burden of pleading with specificity.

However, the court concludes Redwind’s claims fail as a matter of law because each of these

statementswas privileged, even if a reasonableperson could find oneormore ofthese statements capable

of defamatorymeaning. First, anyand all statements byWestern Union managers and employees are

subject toa qualified privilege. A defamatorystatement is subject to a qualified privilege if: “(1)itwas

made toprotectthedefendant’sinterests;(2)itwasmade to protectthe interests oftheplaintiff’s employer;

or (3) it was on a subject ofmutual concern to the defendant and the personstowhom the statement was

made.” Mannex Corp., 250 Or. App. at 59 (citing Wallulis v. Dymowski, 323 Or. 337, 350 (1996)). 

Courts afford wide latitude to statements by managers and co-workers about an employee’s work

performance. See MannexCorp, 250 Or. at 60 (discussing work-related statements). “A defamatory

work-related statement .. . concerninganother employee’swork performance fallsinto eitherthe second

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orthird category” ofstatementstowhich the conditional privilege applies. Id.(quotingWallulis, 323Or.

at 350-51). Atleast one court has determinedthat promoting“workplaceharmony” iswithin the interests

of an employer, the employer’s manager, and other employees. Id. 

Here, each statement aboutRedwindutteredbyPinnegar,Acocelli,Hunt,McCarty, and anyother

Western Union employee is subject to the qualified privilege, as each was on a subject of concern for

WesternUnion and its employees. Specifically, the comments ofWesternUnion employees about how

Redwind’s personalityand communication skills affect morale and business efficiencyare onamatter of

concern for Western Union, which has an interest in promoting workplace harmony and employee

efficiency. All of the statements of which Redwind complains are related to her work and the work of

Western Union. Therefore, these statements are subject to the conditional privilege.

RedwindarguesthatWesternUnion lost the qualified privilege through abuse. Adeclarant may

lose the qualified privilege if he orshehas an improper purpose forpublishingthe defamatorystatements:

Aqualified privilegemaybe lostif:(1)thepublisherdoes not believe thatthe statementis

true or lacks reasonablegroundsto believe that the statement istrue; (2)ifthe statement

is published for apurpose otherthan that forwhich the particularprivilegewas given;(3)

if the statement is published to someone not reasonably believed to be necessary to

accomplish the purpose; or (4) if the publication involves defamatoryinformation not

reasonably believed to be necessary to accomplish the purpose.

Wilson v. Dollar Tree Stores, Inc., No. Civ. 03-817-HA, 2004 WL 1381209, at *3 (D. Or. June 21,

2004) (citing Shafroth v. Baker, 276 Or. 39, 45 (1976). Here, Redwind offers no evidence to create a

genuine issueofmaterialfact onwhetherWesternUnion abused the qualified privilege. Redwind citesno

documentaryevidence to show that anyofthe fourfactors apply. Instead,she citesto ten paragraphs in

theRedwindDeclaration. However, none ofthese paragraphs contains admissibleevidencewhich shows

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abuse ofthe qualified privilege against defamation. Theyprimarilyconsist ofRedwind’sinadmissible

argumentative and conclusorytestimonyabout the declarants. To the extent Redwind arguesWestern

Union and the declarants acted with the improper purpose of discrimination and retaliation, Redwind

produces nothing in support of her argument besides speculation and conjecture. Thisis not enough to

defeat a motion for summary judgment. 

Accordingly,Redwind failstomeet her burden of demonstratingabuse ofthe qualified privilege. 

BecauseRedwind failed to establish abuse, Western Union is entitled to the qualified privilege against

defamation forthe statements at issue in this case, andsummaryjudgment should be granted inWestern

Union’sfavor. Because the court concludes eachstatement atissue is entitledtothequalified privilege,the

courtneednot addressWesternUnion’s argumentsthatthe statements are non-actionableopinionandthat

some of the statements at issue are entitled to absolute immunity as statements in a quasai-judicial

proceeding.

II. Pay Discrimination.

Redwind allegesthat she has been subject to paydiscrimination on the basis of her race and her

gender, and alleges claims under the Equal PayAct and 42 U.S.C. § 1981. Western Union moves for

summaryjudgment and arguesRedwind cannot prove a prima facie case under eitherstatute. Redwind’s

argumentrelies primarilyon a two-pagedocumentfiled separatelyfromherResponsewhichshe contends

is “proof”ofdiscrimination. The courtwillfirstdiscusswhetherherEqualPayAct(“EPA”) claimsurvives

summary judgment, and thereafter address her claim for discriminatory pay practices under § 1981.

A. Equal Pay Act.

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The principle underlyingtheEPAis “that employeesdoingequalworkshouldbepaidequalwages,

regardless of sex.” EEOC v. Maricopa Cty. Cmty. Coll. Dist., 736 F.2d 510 (1984) (quoting Hein v.

Ore Coll. of Educ., 718 F.2d 910, 913 (9th Cir. 1983)). For a plaintiff to prove a claim under the EPA,

he or she must show “that the employer pays different wages to employees of the opposite sex for

substantially equal work.” Maricopa Cty. Comm. Coll Dist, 736 F.2d at 513. The plaintiff has the

burden of demonstratingthe comparatorjobs are “substantiallyequal.” Id. “To be ‘substantiallyequal,’

the jobs need not be identical, but must require similarskills, effort and responsibilityperformed under

similar conditions;itis actualjobperformance requirements,ratherthan jobclassifications ortitles,thatis

determinative.” Id. Once the plaintiffmakes a sufficientshowingof a prima facie case, the burden shifts

to the defendant to demonstrate the pay-differential is not the result of discrimination. Id. The EPA

providesfourstatutoryexceptions uponwhich the defendantmayrely: “(i) a senioritysystem;(ii) amerit

system;(iii) a system whichmeasures earnings byquantityor qualityof production; or(iv) a differential

based on any other factor other than sex.” 29 U.S.C. § 206(d)(1).

Here, Redwind does not prove a prima facie case under the EPA. First, she does not produce

evidence that anothersimilarlysituatedindividual hasbeenpaidmore than she. Infact,Redwind does not

even statehersalaryin relevant portions ofthe response brief. Nor doesshe include hersalaryin the “Pay

DiscriminationAttachment.” Instead,sherelies exclusivelyonher argumentthatWesternUnionemployees

and managers gave her false information about the applicablewage structure and committed “fraud.” 

Redwind produces no authority to support her argument that a disagreement about the applicable pay

structure is sufficient to constitute a prima facie case under the EPA. 

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Western Union concedesthat two similarly-situatedmale employees earnmore thanRedwind:

CharlesDalmadge andScottJepperson. However,these twoemployees have been employedbyWestern

Union for much longer than Redwind and have seniority over her. Charles Dalmadge has been with

Western Union forthirty-four years, and Scott Jepperson for fourteen years. Redwind has worked for

Western Union for only seven years, so the pay differential is explained by each individual’s relative

seniority, andRedwindprovides no evidence that these employees’payisbased on some other,improper

factor. Therefore, to the extent Redwind can prove a prima facie case under the EPA with respect to

Dalmadge and Jepperson,WesternUnion hasmetits burdenofshowinga non-discriminatoryreason for

the paydifferential. Thus,the courtshould grantWesternUnion summaryjudgment onRedwind’sEPA

claim.

B. Racially Discriminatory Pay Practices.

The standard for establishinga primafacie caseof employment discrimination under § 1981 isthe

same usedto establish a prima facie case of disparate treatment underTitleVIIoftheCivilRightsAct of

1964. Gay v. Waiters’ &Dairy Lunchmen’s Union Local No. 30, 694 F.2d 531, 539 (9th Cir. 1982). 

UnderTitleVIIa plaintiffmayestablish a prima facie caseofdiscriminationeitherthroughdirect evidence

or circumstantial evidence. Godwin v. Hunt Wesson, Inc., 150F.3d 1217, 1220 (9thCir. 1998). Direct

evidence is “evidence of conduct orstatements bypersonsinvolved in thedecision-making processthat

maybe viewed as directlyreflecting the alleged discriminatoryattitude . . . sufficient to permit the fact

finderto inferthat the attitudewasmore likelythan not amotivating factorin the employer’s decision.” 

Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3 802, 812 (9th Cir. 2004) (emphasis original).

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Where no direct evidence is apparent on the record, the plaintiffmaystill establish a prima facie

case of disparate treatment through circumstantial evidence byshowing: (1) she belongsto a protected

class; (2) she was qualified for a job or was performing according to her employer’s legitimate

expectations;(3)shewassubjecttolowerpaythansimilarlysituated individuals notin her protected class. 

Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). Where the plaintiff meets this burden,

the burden shifts to the defendant to provide a legitimate, nondiscriminatoryreason forthe employer’s

action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Davis, 520 F.3d at 1089. If

the employer does so, the plaintiff must demonstrate that the “reason is pretextual ‘either directly by

persuading the court that a discriminatoryreason more likelymotivated the employer or indirectly by

showing the employer’s proffered explanation is unworthy of credence.’” Davis, 520 F.3d at 1089

(quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000)).

Here, Redwind bases her paydiscrimination claim entirelyon her contention that the Western

Union Human Resources Department lied to her about the applicable pay scale, despite that all of her

coworkers were being paid pursuant to the pay scale Western Union represented as being “correct.” 

Therefore, her § 1981 claimfails as amatter oflaw. Even ifRedwind hadmade her prima facie case by

demonstratingthatsimilarly-situatednon-Indian employeeswere paidmore than shewas paid,Western

Union can demonstrate a legitimate, nondiscriminatory reason behind the pay differential: seniority. 

Redwind does not argue her evidence demonstrates pretext, and even ifthe court construed herto argue

pretext, the evidence she cites in support for her position either does not support her contention or is

inadmissible pursuant to the court’s rulings on the parties’ evidentiary objections. 

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To the extent Redwind argues that the “pay scale” she found on a Western Union employee

database creates a genuine issue of material fact on pretext, the court disagrees. Western Union has

produced testimonybyWesternUnionHumanResourcemanagersthat the payscaleRedwind claimsis

applicable to her position is applicable to non-sales positionsinWesternUnion.(AnthonyDecl. ¶ 12.) 

BecauseRedwind’s position is a “sales” position, the payscale isirrelevant tomeasure the proprietyof

Redwind’ssalary. That human resourcesmanager also testifiesthatthe “2013PayScale,”which appears

as Exhibit 2 to theAnthonyDeclaration, is the correct scale. Redwind produces no testimonyor other

evidence,besidesherownconjecture andspeculation,torebutthistestimonyor otherwise create a genuine

issueofmaterialfact. Accordingly,thecourtshouldgrantWesternUnionsummaryjudgmentonRedwind’s

claims for unequal pay under the EPA and § 1981.

III. Title VII Claims.

Redwindraises claimsfordiscrimination underTitleVIIwith respecttoherrace andgender. First,

she contendsWesternUnion created a hostilework environment based on gender and race. Second she

argues she was subject to disparate treatment based on her race and gender. Western Union argues

Redwind’s claims areuntimelyand,in the alternative,she failstomeet her burden ofshowingharassment

or disparate treatment.

A. Harassment Claims.

Although she does not articulate a claimfor “harassment” as one of claimsforrelief,Redwind’s

ThirdAmendedComplaint containsseveral allegationsthat she suffered “harassment.” WesternUnion

movesforsummaryjudgment onRedwind’s harassment claim,should the court choose to construe her

complaint as allegingone. WesternUnionmakestwo arguments. First,it contendsRedwind’s claim is

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time-barred to the extent she intendsto relyon statements and conduct which occurred priortoMay19,

2013,for herfederal claimand priortoMarch 15, 2013,for herOregon state claim. WesternUnion also

arguesthatthe statements andconductwhichfallwithinthe statuteoflimitationswerenotsufficientlysevere

or pervasive to create a hostileworkenvironment. Thereafter,WesternUnion arguesitis protected from

liability under the Faragher/Ellerth defense.

“To prevail on a hostile work environment . . . claim, the plaintiff must show that her work

environment was both subjectivelyand objectivelyhostile; thatis,shemust showthat she perceived her

work environment to be hostile, and that a reasonableperson in her positionwould perceive itto be so.” 

Dominguez-Curry v. Nev. Transp. Dep’t., 424F.3d 1027, 1034 (9thCir. 2005). Aplaintiff can achieve

this bydemonstrating: (1)shewas “subject to verbal orphysical conduct” because of herrace or gender,

(2) “the conduct was unwelcome;” and (3) “the conduct wassufficientlysevere or pervasive to alterthe

conditions ofthe plaintiff’s employment andcreate an abusivework environment.” Kang v.Bank of Am.,

NA, 339 F.3d 792, 817 (9th Cir. 2002). To determine whethertheworkplace conditionsmeet the third

factor, courtstypicallyconsider the frequencyof the conduct,the duration ofthe conduct,the objective

offensivenessofthat conduct,whetherthe conductwas “physicallythreateningorhumiliating,”andwhether

it “unreasonablyinterfered with” the plaintiff’swork performance. Id.; Nichols v.AztecaRest.Enters.,

Inc., 256 F.3d 864, 872 (9th Cir. 2001). 

\ \ \ \ \

Before filing a sexual harassment lawsuit under Title VII, a plaintiff must file a chargewith the 

relevant administrative agencywithin “300 days of anyact that is part ofthe hostilework environment.” 

Maliniak v. City of Tucson, 607 Fed. Appx. 626, 627 (9th Cir. 2015) (mem.), Nat’l R.R. Passenger

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Corp. v. Morgan, 536 U.S. 101, 115-16 (2002). For harassment claims brought under Oregon state

statutes, the charge or case must be filed within one year of the alleged discriminatory statements or

conduct. OR.REV.STAT. § 659A.875(1). In otherTitleVIIclaims,the courtrequires a charge to be filed

within 300 days of each “discrete” discriminatoryact givingrise to the discrimination. Morgan, 536U.S.

at 114. However, inMorgan,theSupremeCourt recognized that the nature of the conduct at issue in a

hostilework environment claimis different because it “occurs over a series of days or perhaps years and,

indirect contrastto discreet acts, a single act of harassment maynot be actionableon its own.” Id. at 115. 

Therefore, hostile acts occurringoutside the 300 daylimitations period are still actionable ifthe prior acts

are “related” to each other and whetherthey are both part the same pattern of harassment creating the

hostile work environment. Id.; Maliniak, 607 Fed.Appx. at 628. Although courts are free to consider

allthe circumstancestodeterminewhether acts are “related,”courtsinthis circuithave considered“whether

the earlier and later events amounted to ‘the same type of employment actions, occurred relatively

frequently, [or] were perpetrated by the same managers.’” Id. 

1. Race.

Redwind arguesshewas harassed byChen,Acocelli, andPinnegar based on herrace and gender,

creatingahostilework environment. Here,the court concludesthatChen’sstatementsinAugust2012and

the remaining conduct which gives rise to Redwind’s harassment claim are not “related.” Chen made

commentsinAugust 2012 thatRedwind didn’t “actIndian” andthatIndiawas not part ofAsia, andmade

comments about the size and shape of Redwind’s nose. These comments could be perceived by a

reasonable individual as offensive racial remarksregardingRedwind’srace, ethnicity, or national origin. 

However, Redwind filed herBOLI charge onMarch 15, 2015, and thus the statements and conduct by

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Chen fall outside the statutes oflimitations applicable to her claims. Therefore,Redwind can premise her

claimonChen’sstatements and conduct onlyifitis “related to” the conductthat fellwithin the limitations

period.

The court concludesthatChen’sstatements are not “related” to the otherstatements and conduct

upon which Redwind premises her claim. Redwind contends she was subject to a hostile work

environment on the basis ofrace based on the commentsin hersemi-yearlyevaluations, otherstatements

made byhermanagers, and statementsmade byher fellow employees. All ofthese statementsfocus on

Redwind’s “interpersonal” and“communication”problems, aswell asthe factthatshe is “toocompetitive.” 

None ofthese statements could be reasonablyperceived as targetingRedwind’srace or being based on

Redwind’srace. Even ifthe court assumed that Chen’sstatements constituted offensive,raciallyhostile

conduct,the comments byPinnegar andAcocelli occurringwithinthe limitations period are of a different

nature. First,theywere uttered bydifferentindividuals. Second,Pinnegar’s andAcocelli’sstatementshad

nothing to do with Redwind’s race or gender.

Tothe extentRedwind arguesthatthese statements are related because theyoccurred in response

to Redwind’s “opposition” to Chen’s Salesforce post which excluded Redwind from praise, the court

disagrees. That connection istoo tenuoustocreate the relationship necessaryto showa continuous hostile

work environmentwhichallows an individualto sue based on conduct occurringbefore to the limitations

period. Accordingly, the court concludesRedwind cannot relyonChen’s commentsto proveher hostile

workenvironment claim, andthattheotherstatements and conduct atissue in this claimare notsufficiently

severe and pervasive to constitute a hostile work environment based on race.

2. Gender.

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Redwind also contendsshewassubject to a hostilework environment on the basis of gender. In

Redwind’sresponse she arguesAcocelli andPinnegartold hershe had“interaction problems,” and “poor

interpersonal skills.” Redwind also testified at deposition that Pinnegar’s statement that she is “too

competitive” was based on her gender or sex. The court concludes these statements, alone or in

conjunction, are not sufficientlysevere or pervasive to constitute a hostile work environment because a

reasonable person could not perceive these statements as beingbased onor because ofRedwind’s gender. 

None ofthese statementsmentionedRedwind’s gendertended to suggestsheheld thesequalities because

she is awoman, ortended to suggest that men did not possessthese qualities. Moreover,Redwind does

not contend thatthese occurred frequentlyenough orover a sufficient period oftime to constitute a hostile

work environment. Therefore, the court concludes summary judgment should be granted in Western

Union’s favor. 

Because Redwind fails to establish she suffered conduct sufficiently severe and pervasive to

constitute ahostileworkenvironment,the court neednot addresswhetherWesternUnionisprotectedfrom

liability under the Faragher/Ellerth defense.

B. Discrimination.

Redwind alleges she was subject to disparate treatment on the basis of her gender and race in

violationofTitleVII. WesternUnion arguesRedwind’s claimsfail as amatteroflawbecause some of her

claims are barredbythe statute oflimitations. Further,it arguesRedwindcannot prove a prima facie case

of disparate treatment underTitleVIIbecause:(1)shewas notsubjectto an adverse employment action;

(2)she cannot identifysimilarly-situated individualswhowere notsubject to these adverse employment

actions; and (3)WesternUnion took each action pursuant to a legitimatenondiscriminatoryreason. To

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narrowthe scope ofthe court’s analysis, the court will first discuss which of her claims are timely. The

court will then address the merits of Redwind’s disparate treatment claim.

1. Timeliness.

Toassert a timelyclaimunderTitleVII,the complainantmustfile a chargewith theEEOCwithin

300 days afterthe alleged unlawful practice occurred. Morgan, 536U.S. at 109-111. AlthoughOregon

law does not require a complainant to file an administrative charge, a civil claim under Oregon

discriminationlaw“must be commencedwithinoneyear aftertheoccurrenceoftheunlawful employment

practice.” OR.REV.STAT.§ 659A.875. TheSupremeCourt has held that,forthe purposes of a disparate

treatment claim, “unlawful employment practice” means each “discrete act or single occurrence” of

discrimination, “evenwhenit has a connectionto other acts.” Morgan, 536U.S. at 111 (internalquotation

marks omitted). Thus, where a plaintiff is relying on adverse employment actions to prove disparate

treatment,the plaintiff’s claimistimelyonlyif he orshe files a chargewithin 300 days ofthe discreet act

under federal law and one year under Oregon law.

Redwind filed herBOLIcomplaint onMarch15, 2014,soherTitleVIIdisparate treatment claim

istimelyonlyto the extentitrelies upondiscreet actsof discriminationwhich occurred on or afterMay19,

2013. HerOregon state claims are timelyonlyto the extent theyrelyon discreet acts of discrimination

which occurred on or after March 15, 2013.

The undisputed facts demonstrate that the following events occurred priortoMay19, 2013, and

may not serve as a basis for Redwind’s discrimination claim: (1) JudyChen’s comments to Redwind

regarding“actingIndian,”whichoccurredinAugust2012;(2)JudyChen’spostingonSalesforce excluding

Redwindfrompraise;(3)Redwind’s allegedexclusion fromtheSeattlemeetingin 2012withPinnegar and

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otherinner-mountain corridor employees;(4)Redwind’s 2011 and 2012 year-end performance reviews;

and (5)Eagle’s closureofRedwind’sMarch19, 2013 ethics complaint,whichEagle closedinApril 2013. 

However, due to the longerstatute oflimitationsfor cases brought underOregon law,Redwindmayrely

on the fifth item,Eagle’s closureofRedwind’sMarch 2013 complaint, because it occurred duringthe oneyear statute of limitations. 

2. Merits.

Toprove a claimfor discrimination, a plaintiffmust offer direct or circumstantial evidence ofthe

defendant’s discriminatory purpose. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir. 1998). 

“Direct evidence is evidencewhich,ifbelieved, provesthe factofdiscriminatoryanimuswithoutinference

or presumption.” Id. (brackets omitted) (quoting Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085

(5th Cir. 1994)). Where a plaintiff can produce no direct evidence, the plaintiff maymake her claim by

introducingevidence to show: (1)she is amember of a protected class;(2)shewas performingaccording

to her employer’slegitimate expectations;(3)she suffered an adverse employment action; and (4) other

similarlysituated employees not in the protected classwere treatedmore favorably. Goodwin, 150F.3d

at1220. “[A]nadverse employment action is one thatmateriallyaffectsthe terms, conditions,orprivileges

of the plaintiff’s employment.” Ray v. Henderson, 217 F.3d 1234, 1242 (9th Cir. 2000).

If a plaintiffmeetsherburdenof establishinga prima facie case,the burden shiftstothe defendant,

whomust produce a legitimate, nondiscriminatoryreason forthe adverse employment action. Godwin,

150F.3d at 1220. Where the defendant successfullymeetsitsburden on step two,the burden shifts back

totheplaintifftoproduce “specific substantial evidence” that defendant’s profferedreasonis “pretext.” Id.

at 1121. Courts analyzeOregon state discrimination claims underthe same framework,so the courtwill

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analyze Redwind’s federal and state discrimination claimstogether. Snead v. Metro.Prop&Cas.Ins.

Co., 237 F.3d 1080, 1091-92 (9th Cir. 2001).

Redwindproducesnodirect evidenceofdiscriminatoryanimus,soshemustproveher case through

circumstantial evidence and the three-step, burden shifting framework. Redwind cites eight adverse

employment actionswhich give rise toher discriminationclaim:(1) her exclusion from the 2012meeting

inSeattlewithPinnegar andothers;(2)PinnegarlabelingRedwind “too competitive”duringher2012yearendevaluationandcitingherproblemswith“interpersonalskills;” (3)Pinnegar’s andAcocelli’s continued

critique of Redwind as having “interaction problems;” (4) Pinnegar awarding the 2013 Outstanding

Achievement award toWattsinstead ofRedwind;(5)givinganother employee a highermerit increase in

2013;(6)PinnegargivingRedwind a “1" ratingin the “Net-NeutralCount” categoryforher2014year-end

evaluation; (7) HiringRedwind at a salary“belowthe company’sminimum standards;” and (8) giving

Redwind a “low” rating for Redwind’s 2013 year-end review. (Resp. at 25-30.) The court alreadyhas

concluded Redwind’s federal claims are time-barred to the extenttheyare based on conduct occurring

beforeMay19, 2013,so her claims based on the first,second, and seventh alleged adverse employment

actions are time-barred. The court will now consider the merits of Redwind’s claims based on the

remaining actions.

a. Critiques of Redwind’s Interpersonal Skills.

Redwind contends that shewassubject to an adverse employment action becausePinnegar and

Acocelli told hershewas “too competitive,” and had “poorinterpersonal and judgmentskills.” Standing

alone, these statements would not constitute an adverse employment action, as Redwind fails to

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demonstratehowthemere utterance ofthese performance critiques affect the “terms and conditions” of

her employment. The comments were all work-related and are not objectively offensive.

Redwind does notraise the argument,butthese statementsmayconstitute anadverse employment

actionwhentheyappearinthe “coachingmemorandum.” Thecoachingmemorandum,whichAcocelligave

toRedwind onAugust 13, 2013, could reasonablybe viewed as a formofdiscipline. TheWesternUnion

Code ofConduct identifies “counseling,”which isreasonablyviewed as a synonym for “coaching,” as a

method of disciplineWesternUnionmayimpose for violations ofrules and policies. (RedwindDecl.Ex.

4 at 50.) Courts typicallyfind workplace discipline, including “warning letters” to constitute adverse

employment actions. Fonseca v. Sysco Food Servs of Ariz., Inc., 374 F.3d 840, 848 (9th Cir. 2004). 

Therefore, the coaching memorandum may serve as an adverse employment action. 

However, Redwind fails to show that she was performing her job according to her employer’s

legitimate expectations in regards to her interpersonal and communication skills. In the coaching

memorandum, Acocelli cites at least five instances where Redwind exhibited poor judgment or poor

interpersonal skills. Redwind does not now, and has never, questioned the factual truth of the events

underlyingtheCoachingMemorandum. She takesissue onlywithAcocelli’sinterpretationofthose events

and the conclusions he reaches. BecauseRedwind does not show she performed her job according to

Western Union’sreasonable expectationsin regardsto communication skills, interpersonal skills, and

professional judgment, Redwind cannot make out a prima facie case based on the Coaching

Memorandum.

Even ifRedwindwere able tomake out a prima facie case based on the coachingmemorandum,

WesternUnion contendsitissuedthememorandumforthe legitimatenondiscriminatoryreason thatitfelt

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obliged to help Redwind improve on her weaknesses and to promote workplace harmony. Western

Union’sjustificationforissuingthememorandumandotherwise critiquingRedwind’s communication and

interpersonal skills has been consistent since the critiques were issued. 

Redwind attemptsto showpretext byarguing that another employee, StacyBlake, was praised

for herinteraction and communication skills, despite sending an emailthat showed competitiveness and

hostilitytowardRedwind. The court disagreesthat this,without more,is “specific substantial” evidence

of pretext. AfterBlake and herteam came upwith a newmarketingidea,Blakewrote to the entire team,

includingPinnegar andAcocelli, “Take thatSandeep! Nothingwrongwithsome friendlyAEcompetition. 

Shewill one up ussoon because she is ourmarketinggoddess!” (RedwindDec.Ex. 49 at 1.) Thereafter,

PinnegargaveBlake a ratingof “exceeds expectations” inthe “connectedness” categoryof her 2013 yearend reviewand praisedBlake’s communication skills. (RedwindDecl.Ex. 50at 1.) Hewrote thatBlake

“has always exceeded my expectations with WU behaviour and it is greatly appreciated.” (Id.) 

This evidence failsto showpretext fortwo reasons. First,Blake’s emailis not trulycompetitive

or hostile towardRedwind. It specificallystatesthat the statementwasmade ina “friendly”manner, and

the email endswith high praise forRedwind’s skill as Western Union’s “marketing goddess.” Second,

Redwindfailsto showthatBlakehadapatternofdisagreements andmisunderstandingswithher coworkers

andmanagers. BecauseRedwind cannot produce specific substantial evidenceofpretext, WesternUnion

is entitled to summary judgment on this claim.

b. The 2013 Outstanding Achievement Award.

Redwind contendsthat Pinnegar’s decision to award the 2013OutstandingAchievementAward

to Watts, as opposed to Redwind, was an adverse employment action. The court disagrees. Redwind

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cites no authorityforthe proposition that amanager’s decision to give an award to plaintiff’s co-worker

instead ofthe plaintiff constitutes and averse employment action. Redwind experienced no change in the

terms and conditions ofher employment. Moreover,Redwind’s contention thatPinnegar’s decisionwas

based on racial animus is undermined by the fact that Pinnegar gave the award to Redwind in 2012. 

Therefore, Western Union is entitled to summary judgment on this claim.

c. Merit Increases.

Redwind arguesthat her merit increase awarded during the 2013 year-end reviewamounted to

an adverse employment action. The court disagrees. During the 2013 year-end reviews, Pinnegar

awarded an increase in payfor each of hissubordinates based on theirrespective performance. Pinnegar

awardedRedwind amerit-payincrease of 4%. Thiswasthe second-highest increasePinnegar awarded. 

Theonlyincreasewhichwas higherwasfor another employee,RocioVasquez,who received a 5%merit

increase. The merit increases for the six other employees receiving one ranged from 2.1% to 3%. 

Redwind failsto demonstrate that receiving the second highest merit increase among her peers

changed the terms or conditions of her employment in an adverseway. Shedoes notintroduce evidence

that she was entitled to receive the highest merit-payincrease under her contract. Nor does she prove

Pinnegar violated Western Union policies by awarding Vasquez a higher merit increase. 

EvenifRedwindprovedthemerit-payincreasewas anadverse employment action,WesternUnion

produces a legitimatenondiscriminatoryreason forPinnegar’s decision:to bringVasquez’ssalaryin line

with otherAccount ExecutiveMTs. Pinnegartestified in hisDeclaration that he has a limited budget to

award formerit-payincreases, and that giving an increase to one person necessarilyprecludes himfrom

giving that increase to another. (Pinnegar Decl. ¶ 6.) He furthertestified that he “approved the highest

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percent merit increase for Ms. Vasquez to bring her base salary more in line with the other Account

Executive-MTs on the team since shewas at the time the lowest paid” individual onthe team. (Pinnegar

Decl. ¶ 26.) Thislegitimatenondiscriminatoryreason isfurthersupported bythe fact that, even after he

applied the merit increases, Vasquez’s salary was still less than Redwind’s. (Pinnegar Decl. ¶ 26.) 

Redwind fails to meet her burden of citing “specific substantial evidence” to demonstrate pretext. 

Therefore, the court should grant Western Union summary judgment on this claim.

d. Year-End Reviews.

Redwind contendsthatshewassubjectto anadverse employment actionwhenPinnegar gave her

a “low” ratingonher2013year-endreview. The court disagrees. Pinnegar gaveRedwindanoverallrating

of four out of five, or “exceeds expectations” for her 2013 year end performance review. This was the

highestratinggiven to anyAccountExecutiveMTunderPinnegar’smanagement, andPinnegartestified

that he has never given an overall rating higher than “exceeds expectations” on a performance review. 

(Pinnegar Decl. ¶ 8.) 

Redwindalso contendsshewassubjecttoan adverse employment actionwhenPinnegar gave her

a “1” rating on one categoryas part of her 2014 year-end performance review. On that review, Pinnegar

ratedRedwind 4 out of 5 or “exceeds expectations” overall,butratedRedwind a1 out of5 in the category

of “NetNeutralAgentCount”because she did notmeet the expectationssetfor her atthebeginningofthe

reporting period. 

In Cozzi v. County of Marin, No. C 08-3633 PJH, 2010 WL 1532359 (N.D. Cal April 16,

2010), a court in theNorthernDistrict ofCalifornia faced nearlyidentical facts. There, the plaintifffiled

suit for discrimination based on gender, and claimed she was subject to an adverse employment action

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when hersupervisor gave her an overallratingof 3 out of 5, or “meetsstandards.” Id. at 1. However, the

managerratedthe plaintiff as “needsimprovement” in one ofthe twentysub-categories considered in the

evaluation. Id. The court concluded the evaluation was not an adverse employment action:

The court finds, however, that the 2006 performance review was largely positive, as

Grigsby’s overallratingwas “meetsstandards.” Accordingto the defendants’ undisputed

evidence,the “meetsstandards” designation qualifies aCountyemployee for all potential

raises, and isrecognition that an employee isdoingwhat the standards ofthe job require. 

Thus, even ifthe one sub-part that indicated “needs improvement” can be construed as

“negative,” the performance evaluation as a whole does not meet the definition of a

negative employment action, because there is no evidence that the evaluation led to an

alterationinthe terms andconditions of plaintiff’s employment,orto anytangible formof

adverse action

Id. at *7.

The court agreeswith the reasoning expressed in Cozzi and concludesRedwind’s claims based

on the 2013 and 2014 year-end performance reviews fail as a matter of law. Redwind produces no

evidence thatfailingto receive a perfect performance rating,despite receivingthehighestratingamongher

peers, altered the terms or conditions of her employment. Her performance ratings were consistently

positive, and as a resultshewas compensated betterthan nearlyall her peers. Accordingly,Redwind fails

to demonstrate a prima facie case of discrimination based on her 2013 and 2014 year-end performance

reviews.

e. The Warning.

AlthoughRedwind does notspecificallycite theWarningas an adverse employment action in her

brief,Redwind discussestheWarningin her complaint and allegesisitwasretaliatoryand discriminatory. 

Therefore,the court will review her claim to the extent it relies on theWarning. WesternUnion argues

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Redwind cannot make a prima facie showing based on the warning because Redwind did not meet

Western Union’s legitimate expectations for her conduct, theWarningwas not adverse, and Redwind

cannotshowa similarly-situated individual outsideherprotectedclasswasgivenmorefavorable treatment. 

It alsoarguesthat, even ifRedwind can establish a primafacie caseofdiscriminationbaseontheWarning,

it issued the Warning for a legitimate, nondiscriminatory reason.

WesternUnion isincorrect that theWarning does not constitute an adverse employment action. 

Western Union’s CodeofConduct identifies a warning as one of several means of discipline Western

Unionmaytake ifits policies areviolated. (RedwindDecl.Ex. 4 at 50.) Courts have repeatedlyheld that

disciplinary actions constitute adverse employment actions. Fonseca, , 374 F.3d at 848. However,

Redwind failstoestablish the elements of her prima facie case. First,Redwind failed to demonstrate she

metWesternUnion’slegitimate expectationsregardingher performance. She produces no evidence, and

doesnot argue,thatshewasincompliancewithWesternUnion’sintellectualpropertyandantitrustpolicies. 

Moreover,Redwind failsto identifysimilarly-situated employeeswhoreceivedmorefavorable treatment

because shedoes notidentifyanyWesternUnionemployeewhowas accused of violatingWesternUnion

intellectual propertyand antitrust policies. Because she fails to prove two elements of her prima facie

case, Western Union is entitled to summary judgment.

Even if Redwind was able to make out a prima facie case, Western Union argues that it issued

theWarningforthe legitimate nondiscriminatoryreasonof ensuringRedwindwas aware she had violated

WesternUnionpolicies andtoconvinceRedwindtorefrainfromfurtherpolicyviolationsinthefuture. This

legitimate, nondiscriminatoryreasonhasremainedconsistentsince theWarningwasissued. Redwindfails

to produce “specific substantial” evidence tendingto showdiscriminatoryanimuswasthe actual motive

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behindissuingtheWarning,or eventhatitwas amotivatingfactorbehindWesternUnion’sdecisiontoissue

theWarning. BecauseRedwind’s claimfails at step one and step three ofthe burden shiftingframework,

the court should grant summary judgment in Western Union’s favor on this claim.

f. The Investigations.

Again,Redwinddoesnotspecificallycite the allegedly“insufficient” investigations conducted by

Eagle andMcCartyas adverse employment actions. However, Western Union arguesRedwind cannot

prove her discrimination claims based on the investigations. The court agrees. Redwind hasthe burden

of demonstrating shewassubjecttoan adverse employment action. Therefore,she has a dutyto produce

factswhichshowaparticular action negativelyaffectedthe “terms andconditions”ofher employment. For

her claim premised on the investigations, this necessarilyrequires Redwind to produce some evidence

which tends to prove the primarypremise of her argument: that the investigations were conducted in a

mannerwhich fell belowwhatis usuallyapplied toWestern unionethicsinvestigations. Redwind failsto

carry her burden in two ways. First, she fails to produce evidence showing the typical investigatory

procedures applied to ethics investigations orrequired byWesternUnion policies. Second,she failsto

produce evidence showingwhatinvestigatoryproceduresWesternUnion actuallyapplied to her case, or

thatthose proceduresfell belowthose requiredbythe lawandWesternUnion policy. Therefore,Western

Union is entitled to summary judgment on this claim

C. Retaliation.

Redwind contends she was subject to retaliation for opposing Western Union’s allegedly

discriminatorypractices. WesternUnionmovesforsummaryjudgmentonRedwind’sretaliationclaims and

argues:(1)Redwind cannot establish she suffered an adverse employment action;(2)she cannot establish

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the causal element of her claim; and (3) even ifshe establishes her prima facie case,Western Union has

legitimate nondiscriminatory reasons for each action.

To establish a prima facie case for retaliation under Title VII, the plaintiff must show: (1) she

engaged in protected activity;(2)she suffered an adverse employment action; and (3) acausalrelationship

exists between the two. Brooks v. City of San Mateo, 299 F.3d 917, 928 (9th Cir. 2000). For a

retaliation claim, courts define adverse employment actionas anactionwhich is “reasonablylikelyto deter

the chargingpartyorothersfromengagingin protected activity.” Ray, 217F.3d at 1243-44. To establish

causation, aplaintiffmustshow“byapreponderance ofthe evidence that engagingin the protectedactivity

was one ofthe reasonsfor[the adverse employment action] andthatbutforsuchactivityhewouldnothave

been fired.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064-65 (9th Cir. 2002) (quoting

Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782, 785 (9th Cir. 1986). Where a plaintiff proves

the three elements of a prima facie case, the court appliesthe same burden-shiftinganalysis applicable to

discrimination claims, wherebydefendants must show theytook the adverse employment action for a

legitimatenondiscriminatoryreason, at which time the burden shifts back tothe plaintiffto demonstrate

pretext.

Because the court concluded supra that some of Western Union’s actions do not constitute

adverse employment actionsfor purposes of a discrimination claim,the courtwill addressthepreliminary

issueofwhetherthosequalifyas adverse employment actions underthe test applicable toretaliationclaims. 

Thereafter, the court will determine if any of Redwind’s retaliation claims survive summary judgment.

1. Adverse Employment Actions.

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Insupportfor herretaliationclaim,Redwindcitesthe same adverse employment actions she cited

tosupport her discrimination claim. The court has alreadyconcludedthat her claims based onbeinghired

at a salarybelowthe payscale and her exclusion from the 2012Seattlemeeting are time-barred. Because

the same statute of limitations appliesto retaliation claims,Redwind’s claims based on those allegedly

adverse employment actions are time-barred.

The court also concludes Redwind cannot rely on the following actions to prove her claim for

retaliationbasedon:(1)Pinnegar’s andAcocelli’s critiquesofRedwind’s communicationandinterpersonal

skills,withthe exceptionofthose includedinthe coachingmemorandum;(2)theoutstandingachievement

award;(3)Redwind’smerit-payincreases;(4)Redwind’sperformance reviews; and(5)the investigations.

First, although theCoachingMemorandumis a formof discipline and thus constitutes an adverse

employment action,Acocelli’s and Pinnegar’sstatementstoRedwind regardingher communication and

interpersonal problems are not an adverse employment action. It is clear that Redwind took offense to

them, but theywould not have dissuaded a person ofreasonable firmnessfrom pursuing hisor herrights

byreportingabusesthroughofficial channels. Inreachingthis conclusion,the courtisparticularlypersuaded

bythe factthatthe statementswere not an unprompted attack onRedwind’s characterintended to hurt or

offendRedwind. Instead,Pinnegar, and laterAcocelli, offered these critiques onlyafterRedwind asked

Pinnegar howshe could achieve a higherrating on her performance evaluations. Pinnegarresponded to

Redwind’srequest byidentifyingthe areasinwhich she could improve herwork performance. Thus, the

court concludesthat a reasonablepersonwould not be dissuaded fromengagingin protected activityafter

receiving these critiques which that person requested.

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Second, the court concludes a reasonable person would not be dissuaded from engaging in

protectedactivityuponnotreceivingthe2013OutstandingAchievementAward. The recorddemonstrates

that the award was given to only one employee under Pinnegar’s management each year. Moreover,

Pinnegargave the awardtoRedwindthe previous year and didnot promise thatshewould receive it again. 

A reasonable person would not be dissuaded from engaging in protected action after not receiving the

award a second consecutive year. Because only one employee per year can receive the award, a nonrecipient’s career orstandingwith the organizationwould not be harmed orotherwise affected. Therefore,

not receivingtheOutstandingAchievementAward is not an adverse employment action forthe purposes

of Redwind’s retaliation claims.

Third,the court concludesthatPinnegar’s decision to awardVasquez a highermerit-payincrease

than Redwind is not an adverse employment action. Redwind received the second-highest merit pay

increase of anyAccountExecutiveMTunderPinnegar’smanagement. Redwind received a four percent

increase,whileVasquez received a five-percent increase. Areasonable personwho received the second

highestmerit-payincrease amongthose similarlysituatedwould not be dissuaded fromengagingin further

protected activity. Thatreasonable personwould see themerit-payincrease asindicativeofthe significant

value he orshe bringsto thework group. Therefore,Pinnegardid nottake anadverse employment action

when he awarded Redwind the second-highest merit-pay increase during the 2013 year-end reviews.

Fourth,Redwind cannot premise herretaliation claimon hermid-year or year-end performance

reviews because she received a four-out-of-five, or “exceeds expectations” rating. Pinnegartestified he

has neverrated an employee higherthan “exceeds expectations,” and givenWesternUnion’sfive-point

evaluationscalewhere five isthehighestrating,areasonable individualwouldviewafour-out-of-five rating

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as a positive. That largelypositive ratingwould not dissuade a reasonable individual from engaging in

further protected activity. Therefore,Redwind’s performance evaluations are not adverse employment

actions which may form the basis of a retaliation claim.

Fifthandfinally,Redwindcannotpursueherretaliationclaimbasedonthe investigations. Redwind

has failed to produce evidence showing: (1) the typical procedures Western Union employees take to

investigate ethics complaints; and (2)thatthe procedures employed to investigateRedwind’sfive ethics

complaintsfellshort ofthatstandard. Shemerelyarguesinconclusoryfashion thatthe investigationswere

insufficient. Because she failstomeet her burden of provingthe truthofthe primarypremiseuponwhich

her “investigation claims” are based, the court concludesshe cannot demonstrate the investigationswere

adverse employment actions. 

\ \ \ \ \

\ \ \ \ \

However,theCoachingMemorandumandtheWarningbothconstitutedisciplinaryactions,which

courts have consistentlyheld to constitute adverse employment actions. Therefore, the court will now

consider the merits of Redwind’s retaliation claims based those two disciplinary actions.

1. The Coaching Memorandum.

The coaching memorandum constitutes an adverse employment action, and Western Union

assumes, without conceding, that Redwind engaged in protected activity “by complaining about her

supervisors and manager.” (Mot. for Summary Judgment at 30.) However, Western Union contends

Redwind cannot establish causation or pretext. 

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“[C]ausation can be inferred from timing alonewhere an adverse employment actionfollows on

the heels of protected activity.” Villiarimo, 281 F.3d at 1065; see also Miller v. Fairchild Indus., 885

F.2d 498, 505 (9th Cir.1989) (prima facie case established where adverse action taken forty-two and

fifty-nine days after protected action); Yartzoff v. Thomas, 809F.2d 1371, 1376 (9thCir. 1987)(prima

facie case establishedwhere adverse action taken threemonths after complaint filed, two months after

charge firstinvestigated, and lessthan twomonths afterinvestigation completed). However,theSupreme

Court has concluded that,in the absence of other evidence, “the temporal proximitymust be ‘veryclose’”

to establish an inference of causation. ClarkCty. Sch.Dist. v.Breeden, 532U.S. 268, 273 (2001)(citing

O’Neal v. Ferguson Constr. Co, 237 F.3d 1248, 1253 (10th Cir. 2001); Richmond v. ONEOK, Inc.,

120 F.3d 205, 209 (10th Cir. 1997) (finding a three-month time lapse to be insufficient); Hughes v.

Derwinski, 967 F.2d 1168, 1174-75 (7thCir. 1992)(findinga four-month period insufficient)); see also

Adusumilli v. City of Chicago, 164 F.3d 353, 363 (7th Cir. 1998) (cited favorably byVilliarimo, 281

F.3d at 1065)(eight monthstoo long to create an inference of causation); Davidson v. Midelfort Clinic,

Ltd., 133 F.3d 499, 511 (7th Cir. 1998) (cited favorablybyVilliarimo, 281 F.3d at 1065)(fivemonths

too long); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (cited favorably

byVilliarimo, 281 F.3d at 1065)(fourmonthstoo long). Courts have found temporal proximity to be a

particularlyunconvincingmeansofprovingcausationwherethe employer’srationaleunderlyingtheadverse

action orplan to undertake the adverse action predatesthe plaintiff’s protected activity. SeeBreeden, 532

U.S. at 272 (finding no inference of causationwhere the employerplannedto transferthe plaintiff before

she engaged in protected activity, but transferred her after the protected activity occurred).

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Here,Redwind does notmeet her burden ofshowing a causal relationshipbetween theCoaching

Memorandum and her protected activity. Redwind filed herfirst ethics complaint against Pinnegar and

AcocellionMarch9,2013. (McCartyDecl. ¶ 4.) Engle investigated the complaint and concluded nolaws

orWesternUnion policieswere violated. (McCartyDecl.Ex. 2.) This conclusionwas communicatedto

Redwind onMarch 25, 2015, via email. (TAC Ex. 1 at 21.) OnAugust 13,2013,more than fivemonths

after Redwind filed her March 9, 2013 ethics complaint, Acocelli gave Redwind the Coaching

Memorandum. (AcocelliDecl.Ex.5.) More thanfivemonths,without additional evidence,isnotsufficient

temporal proximityto demonstrate causation. Moreover,Acocelli andPinnegar expressed their concerns

aboutRedwind’s communication andinterpersonalskills beforeRedwind filed herfirst ethics complaint,

furtherweakeningthe causalinferenceRedwind asksthe courttomake. BecauseRedwind cannot prove

a causal connection between the first ethics complaint and theCoachingMemorandum,the courtshould

grant Western Union summary judgment on this claim.

\ \ \ \ \

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2. The Warning.

Redwindnext contendsthattheWarningwasretaliationforRedwind’sBOLIcomplaint. Redwind

filed her BOLI complaint on March 15, 2014. (Crespo Decl. Ex. 6.) BOLI completed itsinvestigation

and dismissedRedwind’s charge on September 3, 2014. (TAC Ex. 22.) Pinnegar issued Redwind the

Warning on October 1, 2014. (PinnegarDecl.Ex. 7.) Therefore, theWarningwasissued six and a half

months after Redwind filed her BOLI complaint and just under one month after BOLI closed her case.

Redwind failsto establish a causal connection between theBOLI complaint and theWarning, as

theWarningwasissued roughlysevenmonths aftershe filedherBOLIcomplaint. Moreover, even ifthe

temporalproximitybetweentheWarningandtheBOLIcomplaintdemonstratedcausation,WesternUnion

hasshowna legitimatenondiscriminatoryreason forissuingRedwindtheWarning– tonotifyherthat her

SalesforcepostsviolatedWesternUnion’s antitrust andintellectualpropertypolicies. Redwindfailstomeet

her burden thereafter of offering “specific substantial” evidence of pretext. Therefore,Defendants are

entitled to summary judgment on Redwind’s retaliation claim based on the Warning.

IV. Damages.

Because the courthas concludednoneofRedwind’s claimssurvive summaryjudgment,itneednot

address Western Union’s remaining argument that Redwind cannot prove her claim for damages.

Conclusion

Forthe aforementionedreasons,WesternUnion’sMotion forSummaryJudgment(ECFNo.95)

should be GRANTED in full, and Redwind’s case should be dismissed with prejudice.

Scheduling Order

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The aboveFindings andRecommendation will be referred to a United StatesDistrict Judge for

review. Objections,if any, are dueMay19th, 2016, if no objections are filed,reviewoftheFindings and

Recommendation will go under advisement on that date. If objections are filed, a response to the

objectionsis due fourteen days afterthe date the objections are filed and the review of the Findings and

Recommendation will go under advisement on that date.

DATED this 2 day of May, 2016. nd

 /s/ John V. Acosta 

 JOHN V. ACOSTA

United States Magistrate Judge

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