Atta v. Cisco Sys.

Full title: DEE DEE ATTA, Plaintiff, v. CISCO SYSTEMS, INC., Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Date published: Aug 3, 2020

CIVIL ACTION FILE NO. 1:18-cv-1558-CC-JKL (N.D. Ga. Aug. 3, 2020)

Opinion

CIVIL ACTION FILE NO. 1:18-cv-1558-CC-JKL

08-03-2020

DEE DEE ATTA, Plaintiff, v. CISCO SYSTEMS, INC., Defendant.

JOHN K. LARKINS III United States Magistrate Judge

ORDER AND FINAL REPORT AND RECOMMENDATION

This is an employment discrimination case brought under the Americans with Disabilities Act (the "ADA"), the Equal Pay Act (the "EPA"), and Title VII of the Civil Rights Act ("Title VII"). It is before the Court on Plaintiff's Motion for Spoliation Sanctions [Doc. 89] and Defendant's Motion for Summary Judgment [Doc. 85].¹ For the reasons that follow, the undersigned RECOMMENDS that Plaintiff's motion be GRANTED IN PART AND DENIED IN PART and that Defendant's motion also be GRANTED IN PART AND DENIED IN PART.

1 Plaintiff's and Defendant's motions for leave to file matters under seal are GRANTED. [Docs. 87, 91, 100, 105, 122.] The Clerk is DIRECTED to seal the attached materials.

MOTION FOR SPOLIATION SANCTIONS

Because Plaintiff's motion for spoliation sanctions seeks, among other things, the imposition of adverse evidentiary inferences that might impact the summary judgment analysis, the Court addresses it first.

I. BACKGROUND

Plaintiff filed this single-plaintiff employment discrimination case well over two years ago, and due in no small part to the conduct of both parties, discovery has been far from smooth. Plaintiff's claims in this case are straightforward, even if the underlying facts are not. A long-time employee of Defendant in its Marketing Department (and before that, Scientific Atlanta, which was acquired by Defendant) and cancer-survivor, Plaintiff asserts that, despite exemplary reviews and overwhelmingly positive feedback, she was not paid equally to her male counterparts, and that her inclusion in an August 2016 limited restructuring of the Marketing Department (the "Restructuring") which resulted in her termination from employment was the result of disability discrimination, retaliation for seeking and receiving an accommodation under the ADA, and/or gender discrimination. [See Doc. 52 (second amended complaint); see also Doc. 95 (summary judgment response).]

During the course of discovery, Plaintiff repeatedly requested information and documents pertaining to the Restructuring. While Defendant agreed to produce material about the reasons for Plaintiff's inclusion in it, it objected to what it complained was a broader inquiry into the company-wide business purposes of the Restructuring. As early as October 2018, a dispute arose over, inter alia, one of Plaintiff's requests for production seeking:

Any and all documents that refer to, relate to or reflect upon the business reasons for the "comprehensive limited restructuring" Defendant initiated in or around the summer of 2016 (the [Restructuring]).

[See Doc. 23 at 5-6.] Defendant objected to the request as overly broad and unduly burdensome, asserting that it lacked sufficient particularity and that it was not proportional to the needs of the case. [Id.] Even so, Defendant offered that it was prepared to produce documents and information "related to the restructuring as it applied to the business unit in which Plaintiff was employed, as well as to the personnel with responsibility for implementing the restructuring within that unit." [Id. at 6.] Following the submissions of position statements and a hearing on the matter [see Doc. 22], the undersigned largely agreed, and in an October 25, 2018 order (the "October 2018 Order"), sustained Defendant's objection to producing all documents and information about its "overall reasons for conducting" the Restructuring,² but still allowed that discovery into Plaintiff's employing unit and the "reasons for selecting Plaintiff for separation" were within the permissible scope of discovery. [Doc. 23 at 6-7 (citing Earley v. Champion Int'l Corp., 907 F.2d 1077, 1084 (11th Cir. 1990)).]

2 At the time, the Court was under the impression that the 2016 Restructuring was a company-wide reduction-in-force, impacting global operations.

After discovery extensions and other disputes were addressed and resolved [see, e.g., Docs. 28, 33], the Court again addressed a discovery dispute about the appropriate scope of discovery as it pertained to the 2016 Restructuring, this time over the proposed topics for the deposition of Defendant's corporate representative pursuant to Federal Rule of Civil Procedure 30(b)(6). [See Docs. 34 (30(b)(6) deposition notice), 54 (minute entry for discovery hearing), 55 (order on discovery dispute).] After hearing from the parties, on April 26, 2019, the Court overruled Defendant's objections, concluded that discovery should be allowed into the decision-making process that resulted in the separation of three other women during the Restructuring, in particular because they were within the same business unit as Plaintiff and had a common supervisor with Plaintiff in Doug Webster, the head of the Service Provider Marketing Group ("SPM Group"), a subgroup of the Marketing Department. [Doc. 55 at 2-4.] The Court emphasized that its earlier discovery determinations about the allowable scope of discovery "never addressed [discovery specifically related to] Webster," and did "not place all [such] information. . . outside the permissible scope of discovery." [Id. at 3-4.]

Finally, after further discovery extensions and disputes arose [see, e.g., Docs. 68, 71, 72, 72], the Court held another discovery hearing on a several matters on August 20, 2019 [Doc. 76; see also Doc. 92 (transcript of Aug. 20, 2019 hearing)]. Among other things, Plaintiff sought additional materials pursuant to a discovery request for documents "show[ing] the manner in which employees [who] were to be terminated as part of the [2016 Restructuring] were identified." In particular, Plaintiff complained that during Webster's deposition, he identified four or five documents created in the process of selecting employees for the Restructuring that were not produced, and which Defendant thereafter claimed could not be located. [See Doc. 92 at 11-13.] Because Defendant maintained that it had conducted a thorough search for the documents and confirmed to the Court that it simply did not have them, the undersigned invited Plaintiff to file a motion for spoliation or other sanctions as necessary. [Id. at 12-13.] Defendant's failure to maintain these documents now constitutes the basis for Plaintiff's motion for spoliation sanctions.

Turning, then, to the missing documents, Webster testified as follows:

• Asked if "[a]nything like stacked rankings [] were used in connection with" the Restructuring, Webster stated that "assessments were made of each employee's [] traits [that] were needed . . . to help structure the evolution of the organization," and that information from those assessments would be included in "nine block documents [i.e. spreadsheets]." (Dep. of Doug Webster [Doc. 111] at 128-29). Those nine-block documents were used "as ongoing relevance," but were "largely discontinued by Cisco at some stage," while other, "various spreadsheets [were] used in determining the viability of candidates for the reduced number of roles," after the Restructuring. (Id. at 129.) Webster, managers, and possibly human resources ("HR") personnel, contributed data to these so-called nine-block documents. (Id. at 129-30.)

• Asked immediately thereafter "what kind of documents were created that reflected the assessment of the people in [Plaintiff's g]roup," Webster referred to an Excel spreadsheet with multiple tabs, which was created by himself, managers, and HR personnel, and was "relied upon in making final decisions about [] whose positions would be terminated and whose would not." (Id. at 130, 131; see also id. at 134.) The Excel spreadsheet was maintained by HR, and was one of two main documents used during the Restructuring. (Id. at 134-35.)

• Webster then explained that the Excel spreadsheet was used in conjunction with PowerPoint documents—referred to as "[o]rganizational design documents"—that included "the refined roles and scope of the organization." (Id.) Those were prepared by a third-party consulting firm, with input from Webster, subordinate Directors, and HR personnel (id.; see also id. at 180), and appears to be the other main type of document used during the Restructuring (id. at 134).

• Asked if there were other documents that he created in relation to the Restructuring, Webster said he prepared "a summary of the [Restructuring's] impact," to share with the chief marketing officer

and senior stakeholders in the business group, which was likely shared in some form via email. (Id. at 132-33.)

• Finally, discussing the financial parameters of the Restructuring, Webster testified that he was given "both a budget and the guidelines . . . that we needed to adhere to," which Webster affirmed was a "written set of rules . . . around what would be consider appropriate organizational health parameters for the amount of employees and their respective grade levels in the organization." (Id. at 171-72.) As part of this, there were target levels for total salary and headcount, but those targets included some flexibility. (Id. at 174-76.)

Defendant represents that the nine-block documents, the organizational design documents, the impact summary, and the budget and guidelines have been lost; and they certainly have not been produced to Plaintiff. The multi-tab Excel spreadsheet reflecting the assessment of employees within Plaintiff's business group, referred to as the "Business Case" for the Restructuring, has been produced, as has the final list of employees selected for separation during the Restructuring. [See Doc. 94 at 5; see also Docs. 86-23, 99-2 (portions of Business Case included in summary judgment filings).] Plaintiff has also withdrawn the portion of her motion pertaining to Webster's impact summary [see Doc. 102 at 2, n.1], leaving the nine-block documents, the organizational design documents, and the budget and guidelines (together, the "Restructuring Documents") still at issue.

II. THE PARTIES' ARGUMENTS

In her sanctions motion, Plaintiff argues that because Defendant allowed the loss of the Restructuring Documents, the Court should strike Defendant's answer, or, in the alternative, impose an adverse inference that the missing documents would have demonstrated that any nondiscriminatory and/or non-retaliatory reasons for including Plaintiff in the Restructuring was pretext for improper motive. [Doc. 89.] Defendant counters that the documents at issue were barred from discovery by the undersigned's October 2018 Order, and that to the extent they were not encompassed in that ruling, the Restructuring Documents were still not discoverable under the Federal Rules in this single-plaintiff case, and therefore it was under no obligation to preserve them. [Doc 94 at 3-7.] Regardless, Defendant contends, the Court should decline to impose spoliation sanctions because it acted in good faith and took reasonable steps to preserve evidence in this case, and there is little, if any, non-speculative prejudice to Plaintiff. [Id. at 7-14.] On reply, Plaintiff stresses that the documents relate to the decision-making process that identified her for inclusion in the Restructuring and were therefore discoverable, that Defendant fails to demonstrate it met its preservation obligations, and that prejudice can be inferred based upon what is known about the documents; thus, sanctions should be imposed for spoliation. [Doc. 102.]

III. STANDARD FOR SPOLIATION SANCTIONS

"Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Graff v. Baja Marine Corp., 310 F. App'x 298, 301 (11th Cir. 2009). The imposition of spoliation sanctions is governed by federal law, as spoliation sanctions are considered an evidentiary matter. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). However, where applicable, courts may look to Georgia law as "[f]ederal law in this circuit does not set forth specific guidelines" regarding spoliation sanctions, and "Georgia state law on spoliation is wholly consistent with federal spoliation principles." Id.

Generally, a party seeking spoliation sanctions must first show that (1) the missing evidence existed at one time; (2) the defendant had an obligation to preserve it; and (3) it was crucial to the plaintiff being able to prove her case. In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1305 (N.D. Ga. 2011); Se. Mech. Servs., Inc. v. Brody, 657 F. Supp. 2d 1293, 1299 (M.D. Fla. 2009). After that showing has been made, to determine the extent of sanctions that may be warranted, a court should consider the following factors:

(1) whether the [movant] was prejudiced as a result of the destruction of evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the [spoliator] acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.

Graff, 310 F. App'x at 301; see also McLeod v. Wal-Mart Stores, Inc., 515 F. App'x 806, 808 (11th Cir. 2013). Of particular import is "weigh[ing] the degree of the spoliator's culpability against the prejudice to the opposing party." Flury, 427 F.3d at 946. Even upon a demonstration of spoliation, severe sanctions such as "default [i.e. striking the defendant's answer] or an instruction to the jury to draw an adverse inference from the party's failure to preserve evidence is allowed 'only when the absence of that evidence is predicated on bad faith.'" Marshall v. Dentfirst, P.C., 313 F.R.D. 691, 694 (N.D. Ga. 2016) (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)). "Mere negligence in destroying evidence is not sufficient to justify striking an answer." Id. (citing Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009)). The Eleventh Circuit has acknowledged the broad discretion afforded to trial courts in determining whether to impose spoliation sanctions. Flury, 427 F.3d at 944.

Importantly, though, since the material at issue appears to have been electronically stored (at least at some point), Federal Rule of Civil Procedure 37(e) governs:

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

As the advisory committee notes and courts in this Circuit have repeatedly held, Rule 37(e) does not fundamentally alter the common law spoliation framework, and "does not purport to create a duty to preserve. The new rule takes the duty as it is established by case law, which uniformly holds that a duty to preserve information arises when litigation is reasonably anticipated." Fed. R. Civ. P. 37(e), Advisory Committee Notes to 2015 Amendment; see also Marshall, 313 F.R.D. at 696; cf. ML Healthcare Servs., LLC v. Publix Super Markets, Inc., 881 F.3d 1293, 1308 (11th Cir. 2018) (without specifically deciding whether "Flury is still applicable when a party seeks sanctions based on the spoliation of electronically stored evidence," holding that under "either Rule 37(e) or the Flury test," the same spoliation determination results). Indeed, the introductory section of Rule 37(e) requires that a party must first be shown to have failed in its duty to preserve existing evidence; further, subsection (e)(1) requires that prejudice also be shown before sanctions can be imposed, and that, in most cases, any sanction must be no greater than necessary to cure that prejudice. Fed. R. Civ. P. 37(e)(1); see also id., Advisory Committee Notes to 2015 Amendment ("[A] court may resort to (e)(1) measures only "upon finding prejudice to another party from loss of the information. . . . The rule leaves judges with discretion to determine how best to assess prejudice in particular cases."). Further, the bad faith requirement for more severe sanctions, such as default and adverse inferences, is also largely encompassed in the subsection (e)(2), since such sanctions are still only permitted upon a "finding that the party that lost the information acted with the intent to deprive[, thereby] rejecting cases . . . that authorize the giving of adverse-inference instructions on a finding of negligence or gross-negligence." Fed. R. Civ. P. 37(e), Advisory Committee Notes to 2015 Amendment; see also Living Color Enters., Inc. v. New Era Aquaculture, Ltd., No. 14-CV-62216, 2016 WL 1105297, at *6 (S.D. Fla. Mar. 22, 2016) (finding the intent to deprive standard of Rule 37(e) to be "harmonious with the 'bad faith'" standard).

Because the present motion involves information that was at some point stored electronically (and because the parties do not appear to locate the dispute in Defendant's failure to maintain hard copies of the materials), the Court follows Rule 37(e)'s framework. But given that the resolution of the inquiry depends on the materials' relevancy to the litigation, the extent of prejudice to Plaintiff, and whether or not Defendant acted with the intent to deprive (or otherwise in bad faith), the Court also draws direction from general spoliation case law, since the pertinent analyses are essentially the same. See ML Healthcare, 881 F.3d at 1307-08; see also Nationwide Life Ins. Co. v. Betzer, No. 5:18-CV-39-OC-30PRL, 2019 WL 5700288, at *10 (M.D. Fla. Oct. 28, 2019) (conducting spoliation analysis simultaneous under common law and Rule 37(e).)

IV. ANALYSIS

As a threshold matter, the Court must determine whether the Restructuring Documents "should have been preserved in the anticipation or conduct of litigation." Fed. R. Civ. P. 37(e). If so, the Court then asks whether Defendant "failed to take reasonable steps to preserve it" and whether it can be "replaced through additional discovery." Id. The latter will, in turn, inform the amount of prejudice Plaintiff suffered by its loss. See Fed. R. Civ. P. 37(e)(1). All of these considerations—whether a duty to preserve existed, whether Defendant took reasonable steps to meet its preservation obligations, and how the loss impacted Plaintiff's case—are applicable in some respects here.

A. Whether the Restructuring Documents Should Have Been Preserved

Although Defendant does not address the first question within the context Rule 37(e)'s framework, it does argue that the information contained in the Restructuring Documents is not discoverable, either generally or as a result of the Court's October 2018 Order, and therefore it never had a duty to preserve the materials. [Doc. 94 at 2-7.] Identifying the boundaries of the duty preserve evidence involves asking both when the duty to preserve evidence attached and what needed to have been preserved. See Point Blank Sols., Inc. v. Toyobo Am., Inc., No. 09-61166-CIV, 2011 WL 1456029, at *11 (S.D. Fla. Apr. 5, 2011) (citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)). As to the former, the duty to preserve arises when litigation is reasonably foreseeable or pending, Graff, 310 F. App'x at 301, and it extends broadly to all documents "relevant" to discovery that exist at the time, see Marshall, 313 F.R.D. at 696 (citing Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 848 (2012)); Zubulake, 220 F.R.D. at 218; Point Blank Sols., 2011 WL 1456029, at *11-12 (citing Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y. 2004)). When a corporate entity finds itself as a potential party to litigation, it need not preserve absolutely all information potentially relevant to future litigation; however, its "duty to preserve evidence [still] extends to those employees likely to have relevant information—the key players in the case, and applies to unique, relevant evidence that might be useful to the adversary." Marshall, 313 F.R.D. at 697 (collecting cases). With these principles in mind, the Court addresses the three Restructuring Documents in turn.

As to the nine-block documents, Plaintiff has offered nothing to suggest that documents were retained as a matter of routine throughout the restructuring process, much less that they still existed at the time Defendant was notified of her EEOC charge of discrimination, sometime after mid-December 2016. [See Doc. 86-30 (charge).] The only testimony elicited on the subject—Webster's—suggests that nine-block documents were "used in a way to help structure the evolution of the organization" during the Restructuring, but that managers and HR "would work through" them as relevant on an ongoing basis, and that after that, they were "largely discontinued." (Webster Dep. at 128-129.) Plaintiff's counsel did not obtain further testimony about when they were discontinued and/or when they might have been discarded; and it does not appear that any further discovery efforts were made on this point, except to confirm that the nine-block documents do not presently exist.

Because the only evidence presented tends to suggest that the documents were no longer in use well before Plaintiff's separation, without more, the undersigned is not inclined to conclude that they were maintained after the Restructuring or as late as mid-December 2016; and the Court cannot impute any duty on Defendant to have preserved what it did not have. See Wilder v. Rockdale Cty., No. 1:13-cv-2715-RWS, 2015 WL 1724596, at *3 (N.D. Ga. Apr. 15, 2015) ("It is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party."); see also Marshall, 313 F.R.D. at 696-97 (declining to find a duty to preserve when there was "no evidence to support that, when Defendant received notice of Plaintiff's EEOC charge—seven (7) months after Plaintiff's termination," the relevant documentation or computer files still existed, particularly when they were subject to deletion during that time). Accordingly, sanctions are not warranted in relation to the nine-block documents.³

3 The Court notes further that the information contained in the nine-block documents appears to have made its way into other spreadsheets, including the Business Case. (See Webster Dep. at 128-29.) As such, there is appears to be a strong case to be made that the information was "restored or replaced" within the meaning of Rule 37(e), and that sanctions should not be imposed for this separate reason.

With regard to the organizational design documents, the Court cannot reach the same conclusion. Webster quite clearly identified them one of the two "main documents" (along with the Business Case) which were used to develop the list of employees to be separated during the Restructuring. (Webster Dep. at 134-35.) Given that the list was not finalized until June or July 2016, soon before Plaintiff's separation, the organizational design documents would have still been in use until then. (See id.; see also id. at 179-80.) Furthermore, there is no indication, as there was with the nine-block documents, that the design documents were discarded or discontinued in favor of other material during the course of the Restructuring, and certainly no evidence to support that they might have been deleted as a matter of course. Webster testified that he saw "one page of [the organizational design PowerPoint]" the day before his deposition, and last saw a "full one" sometime before his employment ended in August 2018.⁴ (Id. at 11, 131.) That Webster identified his own separation rather than Plaintiff's tends to suggest that the design documents were still maintained in some capacity by Defendant on an ongoing basis after the 2016 Restructuring, including after it received Plaintiff's charge. Thus, the Court concludes that sufficient circumstantial evidence has been presented to infer that the design documents existed at the time that litigation was reasonably foreseeable.

4 Webster himself was laid off as part of a separate restructuring. (Webster Dep. at 11.)

Even so, Defendant argues—citing to the undersigned's October 2018 Order—that because the organizational documents "defined the scope of the [] Marketing organization" and were "separate from the personnel assessments" for the restructured roles, they merely pertained to the "overall reasons for conducting the reduction in force," and therefore were not relevant or discoverable; and it ultimately had no duty to preserve them. [Doc. 94 at 2, 4-7 (citing the October 2018 Order among others).] The Court cannot agree. At issue during the October 23, 2018 hearing and in the October 2018 Order was Plaintiff's alleged discovery requests for information and materials pertaining to the "company-wide" reasons for the Restructuring. [See Docs. 22, 23.] While the Court agreed that company-wide discovery was too broad, it specifically highlighted that discovery into Plaintiff's employing unit was still appropriate. [See Doc. 23 at 6-7 (citing Earley, 907 F.2d at 1085, for the proposition "that in context of an individual discrimination case, 'discovery on intent may be limited to the employing unit'").] See also Jones v. RS&H, Inc., 775 F. App'x 978, 984 (11th Cir. 2019) ("In the context of investigating an individual complaint the most natural focus is upon the source of the complained of discrimination—the employing unit or work unit.") (internal quotation marks, alterations, and citations omitted).

As Defendant admits in its Statement of Material Facts ("DSMF" [Doc. 86]), Plaintiff was employed within the Marketing Department and specifically located in the SPM Group under Webster as Vice President of that group (id. ¶¶ 46-49, 64). According to Defendant, as part of the reorganization of the Marketing Department in the 2016 Restructuring, the Marketing Department sought to restructure the functions of the SPM Group and reduce the number of employees in the Group; as part of this, the Group "predetermined that [certain] characteristics would be key to the success of the newly-reorganized group," assessed and ranked the employees in the Group along those lines, and explored whether and which employees could perform the functions that remained within the Group upon the Restructuring. (See DSMF ¶¶ 38-42, 147-61.) The organizational design documents are certainly directly relevant to the what roles remained available in the Marketing Department and SPM Group, and whether the Plaintiff's experience and assessment qualified her for those surviving positions. Indeed, there is a factual dispute over the how Plaintiff was selected for separation during the Restructuring—whether her position was simply eliminated, whether she was laid off because her assessment score ranked below other employees in her grade, or some combination of the two. [See Doc. 86-62 at 13-14; Doc. 95 at 24-29.] The organizational design documents, as Defendant acknowledges, set forth the restructured roles in the Marketing Department and SPM Group (see also Webster Dep. at 130), and as such, would certainly shed light on whether or not Plaintiff's position was in fact eliminated. Further, that Plaintiff was selected to be among only four employees of her grade separated from the SPM Group confirms that the design documents—one of "two main documents" for implementing the Restructuring—directly shaped the criteria that was (somehow involved) in her separation. At least some portion of organizational design documents are directly relevant to the reasons for Plaintiff's inclusion in the Restructuring—either as a result of her position's elimination from the SPM Group or because the selection criteria upon which Plaintiff was ranked were shaped by the organizational design—and Defendant therefore had a duty to preserve them.

By in large, the same analysis holds true for the budget and guideline documents. As with the organizational design documents, there is nothing to indicate that the budget and guideline documents were discarded or destroyed as a matter of course, and Defendant does not present any argument on the point. Further, it is clear from Webster's testimony that the documents pertained specifically to the Marketing Department and set forth a target headcount and financial constrains for SPM Group moving forward. (Webster Dep. at 172-73.) These were not company-wide financial documents outlining the global business reasons for the Restructuring as Defendant suggests [see Doc. 94 at 5-6], but documents outlining how many employees should be retained in Plaintiff's employing unit—the SPM Group under Webster—following the Restructuring. As a result, the budget and guidelines should have been preserved for all the same reason as the organizational design documents.

B. Whether Defendant Took Reasonable Steps to Preserve the Restructuring Documents

The next question under Rule 37(e) is whether Defendant took reasonable steps to preserve the Restructuring Documents.⁵ Defendant only briefly argues that it fulfilled its duty to preserve them, representing without citation to any record evidence that "[u]pon receipt of Plaintiff's EEOC Charge, [it] promptly issued a litigation hold governing relevant custodians, including Mr. Webster," which "ensured that everything saved in these custodians accounts was preserved." [See Doc. 94 at 7-8.] However, as Plaintiff rightfully points out [see Doc. 102 at 9-10], Defendant does not attach a copy of the relevant hold notice and, in fact, fails to provide testimonial or documentary evidence to support that it took steps to preserve the documents—showing, for example, when precisely the purported hold notice went out, the content of the notice, that the hold went out to Webster (or any custodian of the Restructuring Documents), what efforts were taken to ensure that Webster or any other custodian retained the relevant documents, whether any standard auto-deletion processes were halted, or really, what actions were actually taken to preserve documents and information. Without any evidence at all of Defendant's preservation measures,⁶ the Court is left conclude that Defendant failed to take reasonable steps to preserve the Restructuring Documents.

5 The Court continues to use the term "Restructuring Documents" for simplicity's sake, but also reiterates for clarity that from this point forward, the only documents at issue are the organizational design documents and the budget and guidelines.

6 Defendant notes that it has produced over 25,000 pages of documents during discovery, suggesting that "this volume alone" supports the inference that it took all necessary steps to preserve the Restructuring Documents. [Doc. 94 at 8.] The Court cannot agree. That sort of production in a single-plaintiff employment discrimination case would just as much support the inference that Defendant was attempting to bury Plaintiff under a mountain of documents, particularly when one of the two "main documents" from the Restructuring is somehow not contained in that exceedingly large universe of documents.

Further, Defendant makes clear that the extent of its search for the Restructuring Documents following Webster's deposition was simply to "review[] for a second time, by hand, all emails and documents preserved in Mr. Webster's account." [Doc. 94 at 8.] That it did not do anything more solidifies the undersigned's conclusion that its preservation efforts were insufficient. Webster made clear that the organizational design documents were generated by a third-party consulting company, Boston Consulting Group ("BCG") in dialogue with the business leaders in the Marketing Department (Webster Dep. at 130, 179-80), and that the budget and guidelines for the SPM Group came from someone higher up in the Marketing Department (or elsewhere within Defendant's corporate structure) (id. at 171-72, 174-75). That neither Defendant nor its counsel made any apparent effort to contact anyone else in the Marketing Department or with BCG, or to search shared storage drives or any other data repositories that Defendant maintains is truly confounding. Accordingly, the Court is left to conclude that Defendant failed in its preservation obligations with respect to the organizational design documents and the budget and guidelines for the Restructuring.

C. Prejudice and Intent to Deprive

The relevant questions now are whether Plaintiff was prejudiced and whether Defendant can be found to have acted with the intent to deprive Plaintiff of use of the information contained in Restructuring Documents. These are separate questions, since subparagraph (e)(1) only requires only a showing of prejudice, but limits corrective measure to those "no greater than necessary to cure the prejudice," while subparagraph (e)(2) does not require a showing of prejudice, but imposes more significant sanctions because the intent to destroy requirement supports the "inference that the lost information was unfavorable to the party that [] destroyed it." Fed. R. Civ. P. 37(e)(1)-(2), Advisory Committee Notes to 2015 Amendment. Thus, while prejudice to Plaintiff will alone justify sanctions, Rule 37(e) reserves the harshest form, such as default and adverse inferences, for only those cases in which the court can "fin[d] that the [spoliating] party acted with the intent to deprive another party of the information's use in the litigation." Fed. R. Civ. P. 37(e)(1)-(2).

In this case, Plaintiff seeks the striking of Defendant's answer and adverse inference as sanctions, and, thus, the Court first considers whether there was an intent to destroy under subparagraph (e)(1). Unfortunately for her position, Plaintiff has presented no evidence showing that Defendant, or anyone on Defendant's behalf, acted intentionally to destroy any of the Restructuring Documents. Indeed, just as Defendant fails to substantiate its preservation measures, Plaintiff argues, res ipsa loquitur, that "[m]ere negligence cannot . . . explain [Defendant's] failure to maintain and preserve these documents," and, thus, it must have acted intentionally to "purge its files." [Doc. 102 at 14; see also Doc. 89 at 11.] Plaintiff, however, appears to have made no inquiry into the circumstances of the Restructuring Documents disappearance—she has not, for in instance, re-deposed Webster or submitted evidence of other discovery measures taken to ascertain what happened to the Restructuring Documents. And she certainly has not set out any evidence in the record tending to show that Webster or anyone else acted affirmatively with the intent to deprive Plaintiff of the information contained in those documents. Without more from Plaintiff, there is no way to conclude that the loss was result of anything more than negligence, and "[t]he Court is not convinced that [D]efendant's negligence—even recklessness . . . rises to the stringent 'intent' requirement set forth in the amended Rule 37(e)." Storey v. Effingham Cty., No. CV415-149, 2017 WL 2623775, at *4 (S.D. Ga. June 16, 2017) (citing Fed. R. Civ. P. 37(e), Advisory Committee Notes to 2015 Amendment, which rejects cases "that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence"); see also In re Delta/AirTran, 770 F. Supp. 2d at 1313 (noting that "[i]in hindsight, Delta should not have waited" to take steps to preserve e-mails, but "without some evidence that Delta's delay was intentional, its failure to act more quickly does not prove bad faith"); cf. Ala. Aircraft Indus., Inc. v. Boeing Co., 319 F.R.D. 730, 746 (N.D. Ala. 2017) (actual evidence of "unexplained, blatantly irresponsible behavior" in relation to preserving ESI, with "[n]o credible explanation," allowed inference of intent to destroy); Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360, 1376-77 (N.D. Ga. 2008) (finding bad faith because custodian "affirmatively deleted" the "most relevant email" despite being told to preserve the document). As the committee notes to Rule 37 make clear, "Courts should exercise caution [] in using the measure specified in (e)(2)." Based upon Plaintiff's failure to offer any actual proof of intent, the Court heeds that advise and recommends against the imposition of the requested sanctions.

Nevertheless, Plaintiff has suffered some prejudice as a result of Defendant's carelessness in failing to preserve the Restructuring Documents—namely, the ability to confirm or disprove Webster and Barlow's assertions that Plaintiff's position was in fact eliminated as part of the Restructuring, and that she was not separated solely as a result of Barlow's assessment of her. See Storey, 2017 WL 2623775, at *5 (prejudice resulted from loss of video providing a more objective measure of what happened); see also Coward v. Forestar Realty, Inc., No. 4:15-CV-0245-HLM, 2017 WL 8948347, at *8 (N.D. Ga. Nov. 30, 2017) (prejudice arose because material "would be helpful in evaluating the merits of the Parties' positions"). While Defendant is correct that Plaintiff's argument over the extent of that prejudice is somewhat speculative, Rule 37 "does not place a burden of proving or disproving prejudice on one party or the other," since "[d]etermining the content of lost information may be a difficult task," and "placing the burden . . . on the party that did not lose the information may be unfair." Fed. R. Civ. P. 37(e)(1), Advisory Committee Notes to 2015 Amendment; see also Coward, 2017 WL 8948347, at *8 (collecting cases where court placed burden of prejudice on spoliating party). As noted above and discussed in more detail below, there is a factual dispute over whether Plaintiff's position was actually eliminated in the restructuring; whether Plaintiff was instead separated based upon Barlow's assessment of Plaintiff's abilities along a variety of largely subjective criteria, such as collaboration, influence, communications, and leadership; or some combination of the two (i.e., the functions of her position were redistributed as part of the Restructuring, but she was only selected for separation after the assessments were made). The organizational design documents and the budget and guideline would certainly shed light on whether or not the functions of Plaintiff's position were retained in the reorganized SPM Group, the extent to which the headcount within Plaintiff's grade was targeted for reduction, and by extension, the trustworthiness of Webster and Barlow's explanations for Plaintiff's inclusion in the Restructuring. Thus, sanctions—limited to addressing the foregoing prejudice—are warranted.

The Court must now determine what sanctions to impose under Rule 37(e)(1). As noted above, "[d]istrict courts have broad discretion to impose sanctions." Pace v. Nat'l Union Fire Ins. Co. of Pittsburgh, No. 1:12-CV-3096- MHC, 2015 WL 11199154, at *2 (N.D. Ga. Feb. 3, 2015). "Spoliation sanctions may include dismissal, exclusion of testimony, or an instruction to the jury to presume that the evidence would have been unfavorable to the spoliator." Storey, 2017 WL 2623775, at *2. In this case, the Court considers the appropriate sanction to be the exclusion of Webster and Barlow's testimony concerning the elimination of Plaintiff's position. In doing so, the sanction directly addresses the prejudice confronting Plaintiff—namely, her inability to test their testimony with concrete documentation. If the case moves forward to trial, Webster and Barlow should be allowed to testify, but Plaintiff should also be allowed to introduce evidence concerning the loss of the organizational design documents and budget and guidelines and to make an argument to the jury that they may infer that the documents contain information unfavorable to Defendant.

V. SUMMARY

Given the nature of the evidence lost and prejudice to Plaintiff, the undersigned RECOMMENDS that Plaintiff's motion for sanctions be GRANTED IN PART AND DENIED IN PART. Plaintiff's request for spoliation sanctions should be GRANTED; however, her specific request that Defendant's answer be stricken or that adverse inferences be imposed should be DENIED. Instead, the undersigned RECOMMENDS the following sanctions for Defendant's failure to preserve the organizational design documents and budget and guidelines for the SPM Group during the 2016 Restructuring:

(1) Webster and Barlow's testimony concerning the elimination of Plaintiff's position as part of the 2016 Restructuring not be considered in support of Defendant's arguments for summary judgment⁷;

7 Plaintiff, of course, should remain free to utilize their testimony.

(2) The parties be allowed to present evidence and argument at trial regarding Defendant's failure to preserve the documents, and the jury be instructed that it may consider that evidence along with all of the other evidence in the case in making its decision.

With the foregoing in mind, the Court now turns to Defendant's motion for summary judgment.

MOTION FOR SUMMARY JUDGMENT

In its motion, Defendant argues that all of Plaintiff's claims are subject to summary judgment. With regard to Plaintiff's ADA retaliation claim, Defendant contends that Plaintiff can neither establish a causal connection to her protected activity nor demonstrate that its proffered reasons for her inclusion in the Restructuring were pretextual. Defendant also argues that Plaintiff's EPA and Title VII pay discrimination claims fail because it can demonstrate that factors other than Plaintiff's gender account for the pay disparities between her and male comparators. Finally, Defendant again argues that Plaintiff cannot establish a prima facie case of gender discrimination in relation to her separation, or that its reasons were pretext for any discriminatory motive.

I. SUMMARY JUDGMENT STANDARD

A court should grant summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant bears the initial burden of showing that it is entitled to summary judgment. Id. ("The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) ("Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact."); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (holding that Celotex did not change the rule that the movant bore the initial burden, and stating, "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial"). The movant may carry its burden by showing the court that there is "an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.

"Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark, 929 F.2d at 608. The nonmovant is then required "to go beyond the pleadings" and to present competent evidence in the form of affidavits, answers to interrogatories, depositions, admissions and the like, designating "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (quotation omitted); see Fed. R. Civ. P. 56(c). "[M]ere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). Resolving all doubts in favor of the nonmoving party, the court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In evaluating a summary judgment motion, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor. Id. at 255.

II. FACTS

In setting out the facts of this case, where possible, the Court relies on Defendant's Statement of Material Facts [Doc. 86], Plaintiff's Statement of Additional Material Facts ("PSAF" [Doc. 97]), and the responses thereto ("R-DSMF" [Doc. 96] and "R-PSAF" [Doc. 104]). The Court has also conducted its own review of the record. See Fed. R. Civ. P. 56(c)(3). The Court proceeds chronologically for the most part, but addresses general matters—such as Defendant's pay practices, relevant to Plaintiff's pay discrimination claims—as it deems appropriate to the factual recitation. Taking the facts in the light most favorable to Plaintiff as the non-moving party, then, the relevant facts are as follows.

A. Plaintiff

Plaintiff is a fifty-year-old cancer survivor (PSAF ¶ 1), who was first diagnosed with breast cancer in September 2006 while working for Scientific Atlanta (id.; DSMF ¶ 115). She underwent a double mastectomy with several reconstructive surgeries, followed by six months of aggressive chemotherapy and five years of subsequent hormone therapy. (PSAF ¶ 1.) Plaintiff remains under the regular care of an oncologist for precautionary monitoring (id.), and although she has had inconclusive biopsies, she has not had a full recurrence since then. (Dep. of Dee Dee Atta ("Pl. Dep.") [Doc. 110] 199-202.) Defendant hired Plaintiff on August 2, 2008, as part of its acquisition of Scientific Atlanta. (DSMF ¶ 63; PSAF ¶ 2.) At the time of her hire, Plaintiff was assigned the position of Marketing Manager III, Grade 11. (DSMF ¶ 64.)

B. Defendant's Compensation and Promotional Practices

Each position with Defendant is assigned a grade (e.g., Grade 10, Grade 11, Grade 12), which is a discrete job level with its own set of duties and performance expectations. (DSMF ¶ 7.⁸) What is considered high performance for one grade level might fall short for another grade level (e.g., person who excelled at being a Grade 11 might be rated lower as a Grade 12 due to the difference in duties and responsibilities, or vice versa). (DSMF ¶¶ 8-10.) Compensation packages at Defendant consist of a number of components, the largest two being base salary and bonuses. (DSMF ¶ 15.) For purposes of base salary, the areas in which Defendant operates are divided into different compensation markets ("Salary Administration Plans" or "SAP") to account for differences in the cost of labor (for example, the cost of labor is higher in the San Francisco Bay Area than in Atlanta), and there are six such markets in the United states with their own pre-determined salary ranges for each position title and grade. (DSMF ¶ 17.) An employee's base salary is determined by finding the appropriate SAP based on where the employee is located, and then finding the salary range associated with the employee's grade and title in that SAP. (DSMF ¶ 19.)⁹ Ordinarily, an employee entering a new grade begins at the lower end of that salary range and increases from there. (Dep. of Lisa Thormodsgard [Doc. 115] at 60-61; see also Webster Dep. at 95-96.)

8 In many instances, the parties fail to dispute the accuracy of statements of fact offered by the other side, but do contest their materiality. (See R-DSMF ¶¶ 7-10; see also R-PSAF ¶¶ 7-13.) Plaintiff, moreover, objects that "Defendant [] fails to identify a connection between the asserted fact and this case . . . ." (See R-DSMF ¶¶ 7-10.) Plaintiff does not explain why she believes Defendant has the burden of affirmatively explaining the materiality of every undisputed fact. Regardless, the Court evaluates all proffered facts for materiality, and where applicable, overrules the parties' stated materiality objections.

9 In other instances, Plaintiff does not dispute the particular statement of fact at issue, but rather complains about inferences or conclusions that might be drawn from general statements—for example, objecting to the statements about policies and practices because, Plaintiff contends, they were not always followed or did not prevent alleged discrimination. (See, e.g., R-DSMF ¶¶ 12, 19, 28.) Because Plaintiff does not refute the stated facts in these instances, the Court deems them admitted. See LR 56.1(B)(2)(a)(2), NDGa. Given the present posture, however, the Court still takes all reasonable inferences in Plaintiff's favor.

Bonuses, meanwhile, are typically awarded annually, though smaller, "spot" bonuses are also awarded for performance on discrete projects and tasks. (DSMF ¶ 21.) The amount of an employee's annual bonus is correlated to an employee's grade (through an incentive target percentage tied to that grade), along with other factors including base salary, performance, incentive targets, and customer satisfaction. (Cisco Professional and Leadership Incentive Plans [Doc. 86-20].)¹⁰ Generally speaking, the higher an employee's grade, the higher the percentage of their salary will be incorporated into the bonus. (See id. at 4, 12.) While bonuses are not directly tied to geography, because geography impacts salary, it also impacts bonuses. (Id.)

10 Plaintiff objects to consideration of the Incentive Plans and other compensation documents because they have not been authenticated and "are therefore not admissible." (R-DSMF ¶ 21; see also id. ¶¶ 22-26.) This, of course, is not the standard for consideration of evidence at summary judgment. Evidence produced for summary judgment need not be in an admissible form if it can be reducible to admissible form for trial. Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999); United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1444 (11th Cir. 1991). Here, Plaintiff does not challenge the underlying authenticity or accuracy of the Incentive Plans, suggest they could not be authenticated and admitted at trial, or indicate that the information has been withheld during discovery. As such, Plaintiff's objections are overruled.

Each grade's salary range includes an identified maximum and minimum. (Thormodsgard Dep. at 10, 38-39, 50; see also id., Ex. 33.) An individual employee's compensation ratio is an indicator of how close to the midpoint of that range the individual's salary falls, calculated by dividing the assigned salary by the midpoint number. (DSMF ¶ 27.) As with salary, in general, the longer an employee is in a particular grade, the higher that person's compensation ratio will be, though there is no policy requiring as much. (Thormodsgard Dep. at 35-36, 55, 60-61; Webster Dep. at 95-96.) When an employee is promoted to a higher grade, because that person usually starts at the lower end of the salary range, the person's compensation ratio often falls below 1. (DSMF ¶ 29.) While Webster testified that it was not unusual for someone with outstanding review to have a compensation ratio of less than 1; he indicated in a 2014 email that his preference was to increase the salary of top performers to get their compensation ratios above 1, and Defendant's 30(b)(6) designee explained that someone would need to be promoted "frequently and not have a lot of time in the grade," to be a top performer with a compensation ratio below 1. (Webster Dep. at 95; Webster Oct. 23, 2014 email [located at Docs. 86-25, 98-6]; Thormodsgard Dep. at 5; see also Dep. of Robert Barlow [Doc. 112] at 119 (denying that any policy exists for achieving compensation ratios above 1 in Webster's group).)

During an employee's tenure, direct supervisors can make recommendations for promotions and raises during a "focal cycle," which usually occur once or twice a year (though there were also years in which there were no focal cycles). (DSMF ¶ 31; see also Webster Dep. at 37-38; Barlow Dep. at 64-65.) It is unclear precisely what precipitates a focal cycle, but budgetary concerns certainly play a significant role. (See Barlow Dep. at 119; Webster Dep. at 96-97, 101; see also Pl. Dep. at 162-63 (testifying that focal cycles occur when executives determine they have the budget for raises and determine how to distribute them).) Promotions and raises "skew[] towards" top performers, but the availability of promotions, and their allocations among grade levels, depend on the overall affordability. (Webster Dep. at 42-43.)

C. Defendant's Marketing Department and SPM Group

During the events giving rise to this action, Defendant's Marketing Department was led by the Chief Marketing Officer ("CMO") Karen Walker. (DSMF ¶ 46.) Within the Marketing Department were a number of groups, including the SPM Group, led by Vice President Doug Webster, and within that group were a number of teams, including the Cross Architectural Marketing ("CAM") Team, led by Director Robert Barlow, who reported directly to Webster. (DSMF ¶¶ 47-50.) As best the Court can tell, the CAM Team provided assistance to diverse product subgroups to "bring together" marketing ideas and strategies, simplify approaches, and provide marketing expertise, so that Defendant, as a "global service provider," could "tell a cohesive story to the outside world" about its various architectures, including "mobile, video, data, [and] so forth."¹¹ (Barlow Dep. at 40-41, 54-55, 211; see also Webster Dep. at 50, 165-66 (describing the CAM Team as the teaming handling "messaging" and "launch activities").)

11 Ironically, the parties' statements of fact fail to bring together a simplified, cohesive story about what it is the CAM Team does (even if its overall function is not directly needed to resolve the present dispute).

Webster worked for Defendant for over 20 years, from 1996 through 2018. (DSMF ¶ 51.) During Plaintiff's employment and at his deposition, Webster indicated that it was his team's "policy" to have top performers' (and "ideally" everyone's) compensation ratios above 1 (Webster Dep. at 99-100; see also Webster Oct. 23, 2014 email), though this was not a formal company policy (DSMF ¶ 54; R-DSMF ¶ 54). Like Webster, Barlow also worked for Defendant for over two decades, between 1997 and 2018. (DSMF ¶ 55.) Some—both men and women—lauded Barlow's managerial style, while others found him difficult to work with. (Webster Dep. at 142-44; Barlow Dep. at 203; see also DSMF ¶ 57; R-DSMF ¶ 57.) At least some women, however, thought that he could be manipulative or degrading, felt that his management style treated women differently, and/or believed that they were passed over for promotion because they were "not one of the boys."¹² (See Dep. of Lisa Garza [Doc. 119] at 30-31; Dep. of Debra Strickland [Doc. 121] at 31-33, 45; Dep. of Marcia Tonetto [Doc. 120] at 75-76.)

12 As to the latter—being passed over for promotions—it appears that the reference was to being part of the SPM Group generally, and not necessarily reflective of Barlow's team or him personally. (See Tonetto Dep. at 75.)

During the relevant time period, Barlow's CAM Team expanded. As of 2013, the Team was comprised of only four people that Barlow supervised—three women (including Plaintiff) and one man. (DSMF ¶ 61.) Between January 2015 and August 2016, that group grew from four to eleven, including four Grade 12 employees—Plaintiff (formerly Grade 11, promoted to Grade 12 by Barlow on May 4, 2015) and three men who were already at Grade 12 when added to Barlow's team; six non-Grade 12 employees—five women and one man; and one male contract worker. (DSMF ¶ 62.)

D. Plaintiff's Employment and Pay on the CAM Team

Plaintiff joined the CAM Team in April 2013, with Barlow as her direct supervisor. (DSMF ¶ 67.) Webster testified that he moved her to Barlow's team from another team in the SPM Group "because of challenges between her and her [m]anager," and the fact that it was "getting disruptive." (Webster Dep. at 164- 65.) Webster also testified that she "prove[ed] to be adaptable" and "a contributor" in the new position. (Id. at 165.) Although Barlow was located in California, and Plaintiff worked in Georgia; the two met weekly via telephone and/or videoconference for coaching and management. (DSMF ¶¶ 69-70.)

During her tenure, Plaintiff's salary was determined using the Salary Administration Plan 01B US Average. [See Doc. 86-18 (Current Situation - 6 tiers (mapping areas for different SAPs)).] Between 2013 and 2015, Plaintiff's salary was as follows:

• 2013 - as a Grade 11, her base salary was $122,795.86, with a compensation ratio of .95;

• 2014 - also as a Grade 11, her base salary was $132,545.85, with a compensation ratio of 1.03;

• 2015 - as a Grade 12, her base salary was $139,173.14 with a compensation ratio of .96.

(DSMF ¶ 72.) With respect to annual bonuses, between 2014 and 2016, Plaintiff received among the highest awards available based upon her salary, grade, and performance. (DSMF ¶ 73.)

At the time of Plaintiff's separation, there were four Grade 12 employees on the CAM Team, and a total of eleven Grade 12 employees in the SPM Group (including the four CAM Team employees). (DSMF ¶¶ 74-75.) Of them, the two male employees at Grade 12 in the same SAP as Plaintiff had the following salaries and compensation ratios between 2013 and 2016:

• Volker Tegtmeyer:

? 2013-2015 - base salary of $136,500.00, with a compensation ratio of .94;

? 2015 - base salary of $143,325.00, with a compensation ratio of .99;

? 2015-2016 - base salary of $149,325.00, with a compensation ratio of 1.03; and

• James Taylor:

? 2013-2016 - base salary of $141,144.69, with a compensation ratio of .97.

[Doc. 86-28 (salary charts); see also Doc. 99-6 (salary charts for all Grade 12 SPM employees).]¹³

13 The salary charts appear to have entries only when the employee's grade, work location, or salary changed. [See Doc. 86-28.] Neither party suggests data has been withheld or that that the employees' interim pay rates—that is pay rates for dates between the listed entries—changed. (See DSMF ¶ 77; R-DSMF ¶ 77.) Accordingly, the Court assumes for present purposes that the listed salaries and compensation ratios remained static during the interim periods.

E. Plaintiff's Complaint about Pay

On October 16, 2014,¹⁴ Plaintiff sent an email to Barlow concerning her pay. (DSMF ¶ 78; see also Plaintiff's Oct. 16, 2014 email [located at Docs. 86-25, 98-6]¹⁵.) In it, Plaintiff asserted that she might not be able to afford diagnostic procedures related to her cancer-prevention treatment based upon changes to her insurance benefits, mentioned that she had not received raises despite receiving outstanding reviews and doing tasks associated with a higher grade, stated that it "seem[ed] unjust," and noted that "an outside observer may perceive this as discriminatory." [Doc. 86-25 at 2.] She did not explain the basis of the "perceivable" discrimination, compare her pay to any male employee, or elaborate further on the comment. [Id.] (See also DSMF ¶ 82.) She then asked that her compensation be "recalibrate[ed]" during the next focal cycle, but specifically noted that she was "not requesting a $20k pay increase." [Doc. 86-25 at 2.] Barlow's immediate response appears to have been to email Plaintiff, thank her for sharing personal information, but criticize the manner in which her email went "awry" by suggesting he was not aware of her compensation package or the upcoming focal cycle. (Barlow Dep. Ex. 8 [Doc. 98-15]; see also id. at 103-14.) Barlow also warned Plaintiff that if "a similar tactic [were] deployed" in a meeting with Webster to articulate her case for a raise, it would not likely "have the outcome you and I both want . . . to move your career and compensation forward." [Doc. 98-15.] Barlow concluded by saying "I'll continue to reinforce my respect and appreciation for what you bring to the team," suggesting they "follow the process, work together for the outcomes we all want"; but also noted that he would "support [Plaintiff's] decision to search for something better," with Defendant or elsewhere if she remained dissatisfied with her compensation and work-life balance on his team. [Id.]

14 This email was sent well in advance of the date Plaintiff identified in her Charge of Discrimination and deposition as being when the alleged discrimination and retaliation against her began. (DSMF ¶ 80.)

15 The Court notes that some of the exhibits to the filed depositions are unreadable. Even so, to the extent they are not reviewable as attachments to the depositions, all of the cited exhibits, as well as those sought out by the Court, can be found elsewhere on the docket.

Barlow and Webster testified that they did not understand the email to make a formal claim of gender or disability discrimination, or indeed understand what type of discrimination she was referencing. (See Webster Dep. at 101-03 ("I d[id]n't know what type of discriminatory behavior she was talking about. . . . [There] could be discriminat[ion] on gender . . . on race, on sexual orientation, on veteran's status."), 120-21 ("[I]t's third person conditional," and "if [she actually] did feel that way, then . . . it would go to Human Resources."); see also Barlow Dep. at 121 ("She was not making an accusation of discrimination at the time.").) In a subsequent email about Plaintiff's complaint to Barlow, Webster noted that he "firmly disagree[d] with the reference to discriminatory behavior," asked that Barlow clarify whether she was in fact making a claim of discrimination, and told him to "refer it to HR if so, per company policy." [Doc. 86-25 at 1 (Oct. 23, 2014 email from Webster to Barlow).] (See also Webster Dep. at 103.) Webster concluded by saying, "This is disappointing - I thought she was making good progress in addressing some of her development areas." [Doc. 86-25.]

Barlow then went back to Plaintiff and asked if she was in fact making a claim of discrimination, to which she responded that she was not, by both telephone and email. (DSMF ¶¶ 84-85; R-DSMF ¶¶ 84-85; see also Barlow Dep. at 109-110 ("[W]hen she clarified she said, Oh, no, I'm not accusing you of discrimination . . . .").) In her follow-up email, Plaintiff stated:

The intent of my note below was not to make or infer a claim of discrimination or any discriminatory practice by Cisco. The organization has not treated me differently or with bias due to my age, gender or other condition. The reason for me raising this item . . . is to express a personal financial concern . . . increase [my] compensation during the upcoming focal cycle [and] continue growing my career . . . . My deepest apologies if my intent was misconstrued . . . .").)

[Doc. 86-33.] Barlow forwarded Plaintiff's emailed response to Webster, stating "Doesn't look like we need to refer this to HR," and noting his belief that Plaintiff "has made good progress" and "is a professional who is very concerned about her overall situation," but that recent benefit changes "caused her to react in a way that was perhaps counterproductive in her choice of words." [Id.] As a result, the Employee Relations Department was not involved in the issue. (DSMF ¶ 86.) In fact, during her employment with Defendant, Plaintiff never reported any allegations of discrimination—including pay discrimination—or retaliation to the Employee Relations Department. (DSMF ¶ 65.)

F. Plaintiff's Work on the CAM Team

According to Barlow, Plaintiff did good work on his team. (DSMF ¶ 88.) Plaintiff's performance reviews in 2013 and 2014 described her as a "top professional," and were generally very positive—describing her years as "tremendous" and "very successful," respectively, and noting that she exceeded expectations—with a few comments about "personality conflicts" and taking negative feedback "personally." (Barlow Dep. at 55-56, 68-74, Exs. 39 [Doc. 86-33], 40 [Doc. 86-34].) Plaintiff was also described, by Barlow and peers, as one of the strongest and toughest personalities in the group, as well as one of the hardest working, most dependable, and most driven. (See, e.g., id. at 69; Tonetto Dep. at 68-69; Garza Dep. at 83-84; Strickland Dep. at 67-68.) At least one these co-workers testified that Plaintiff received and completed more work and received less recognition (in raises and promotions) than male co-workers, and believed that some of the disparity must be due to gender. (Strickland Dep. at 17-20.)

Although Defendant discontinued its use of iterative performance evaluations, Barlow testified that Plaintiff's performance remained "outstanding" in 2015, and that he recommended her for a promotion to Grade 12, which she received. (Barlow Dep. at 75-76, 86-87.) Along with it, Plaintiff received a raise—identified above as a little less than $7,000 in base salary. (Barlow Dep. at 62-63; Webster Dep. at 108-110.)

Even so, Barlow testified that following her 2014 review, Plaintiff's interpersonal problems began to increase. (Barlow Dep. at 88-89.) He explained that sometime after approximately April 2015, her performance was no longer outstanding and included problems such as "[l]ashing out in meetings[, b]erating people[, and i]nsulting people personally and professionally." (Id. at 87-88.) While Barlow said that he had one-on-one's with her to address the issues, her behavior never reached the severity that it resulted in a performance improvement plan, which was Defendant's "defined discipline process" for addressing such concerns formally. (Id. at 88-89.) Barlow identified at least three employees with whom Plaintiff had conflicts because she was overly demanding, forceful, or acerbic, and at least two of whom he said complained about the conduct to him. (Id. at 90-91, 94-98.)

Starting sometime in mid-to-late 2015, Plaintiff began complaining about how hard she worked and how many hours her tasks took. (Barlow Dep. at 34-37; DSMF ¶ 96.) Based upon her reports of working 65 to 70 hours per week,¹⁶ Barlow and Webster testified that they believed the amount of time she spent on tasks was disproportionately large, though Plaintiff and Barlow dispute whether he ever raised the issue in their reviews or one-on-ones. (Barlow Dep. at 36-38, Webster Dep. at 74-75; Aff. of Dee Dee Atta ("Pl. Aff.") [Doc. 98-17] ¶ 4.) Barlow also testified that "from time to time" he "tried to persuade her to ramp down a bit," and Webster testified that he advocated that she (and everyone else) work closer to 45 hours per week. (Barlow Dep. at 36; Webster Dep. at 74-75; see also Apr. 8, 2016 messages between Plaintiff and Barlow [Doc. 86-36] (addressing concerns about Plaintiff being "overloaded").) Webster also testified that as a manager, he prioritized work-life balance to retain employees and get the best from them. (Webster Dep. at 71-74) Plaintiff, however, contends that Barlow merely paid "lip service" to work-life balance, while still assigning a greater workload to Plaintiff than other members of the SPM Group (Pl. Aff. ¶ 7).

16 Webster testified that they never formally audited Plaintiff's hours, and Barlow, who was in California, testified that he relied on Plaintiff and feedback from recipients of her work product to evaluate how much she was working. (Webster Dep. at 75; Barlow Dep. at 35-36.) Plaintiff testified that as an exempt employee, she did not track her hours. (Pl. Dep. at 74.)

G. Defendant's Restructurings

Since 2011, Defendant has been in a "perpetual state of restructuring." (Barlow Dep. at 12; see also id. (affirming further that he had been involved in those restructurings, until his own position was eliminated in 2018); Pl. Dep. at 74.) Limited restructurings eliminate and/or reallocate particular groups, positions, or functions (id. at 13-14), but do not necessarily involve a reduction in overall headcount (Decl. of Jennifer Richardson [Doc. 86-2] ¶ 13). There are two sub-categories of terminations resulting from limited restructurings: (1) "assessment selection" and (2) "position elimination," (DSMF ¶ 37); though both are sometimes referred to as "eliminations" or "layoffs" (Richardson Decl. ¶ 12). For purposes of restructurings then, an assessment selection meant that some or all of a position's functions were retained during a restructuring, but that due to a required reduction in headcount, an assessment would be conducted to determine which employees would be impacted (that is, "selected"); meanwhile, a position elimination meant that all of the functions associated with a position have been eliminated (along, presumably, with the separation of the person in the position) or moved to another business unit. (August 20, 2019 Dep. of Jennifer Richardson ("2nd Richardson Dep.") [Doc. 118] at 160-61; DSMF ¶ 41.)

Once it is determined that a limited restructuring is necessary to satisfy one or more business goals, months of preparation begin before actual implementation. (DSMF ¶ 42.) The Legal Department and the Employee Relations Department (a part of the larger HR Department) remain involved during the process to provide training and guidance where required. (DSMF ¶ 43.) The final list of employees selected for separation and the reason for their selection are reflected in a document known as the Business Case. (DSMF ¶ 44; see also Business Case for 2016 Restructuring [Doc. 86-23].) Employees are notified of their selection for separation via verbal notification and letter, the latter of which describes their right to appeal the decision, their right to apply for any open position within Cisco, and their available post-employment severance and other benefits, along with other pertinent information. (DSMF ¶ 45.)

During the Summer of 2015, recently-named CMO Walker initiated a reorganization of the entire Marketing Department. (DSMF ¶ 102; see also Webster Dep. at 178.) A consolidation of certain groups within the Department began in November 2015, and the first limited restructuring occurred in January 2016. (Webster Dep. at 178-79.) By March 2016, Walker was apparently frustrated with the progress, and enlisted BCG to design a new organizational framework. (Id. at 179-80.)

H. Plaintiff's Requests for Reduced Hours and Accommodation

Contemporaneously with Walker's reorganization, around November 2015, upon the recommendation of her oncologist, Plaintiff notified Barlow of her medical condition and requested that her work hours be "normalized" from 65-70 hours per week to 40 hours per week. (Pl. Aff. ¶ 6; Pl. Dep. at 74.)¹⁷ Plaintiff asked for the reduced workload in her weekly one-on-one meetings with Barlow between November 2015 and April 2016, explaining that she was "starting to feel burned out . . . tired . . . [and] have some health concerns." (Pl. Dep. at 205.) Plaintiff claims that Barlow became increasingly hostile each time she requested a lighter workload. (DSMF ¶ 106.)¹⁸ Although Barlow believed they had been "working through [the issues relating to Plaintiff's workload and stress] productively," by allowing her to work remotely, letting her come and go to attend doctor appointments, and reminding her to "stop the weekend hours" and "moderate [her] time," (Barlow Dep. at 165-69, 179, Ex. 9; Pl. Dep. at 247; Mar. 19, 2019 Dep. of Jennifer Richardson ("1st Richardson Dep.") [Doc. 117] at 75-76, 89-90, Ex. 10.), in April 2016, Plaintiff emailed Barlow about her workload to explain that his efforts to rebalance her workload were insufficient, stating, "I have brought up the issue of my workload with you over the past few months, with very little tangible changes" (DSMF ¶ 109, Barlow Dep. Ex. 9). As she suggested in the email, Plaintiff then began to move certain projects she was working on to other team members. (DSMF ¶ 111.) Although Barlow thought her approach was inappropriate, he nevertheless agreed to move the projects. (Barlow Dep. at 168-70, 174-75.) Certain portions of those projects were returned to Plaintiff, but Barlow reiterated to her that she should pay attention to her 45-hour work limit (but did not track them or know if she exceeded that limit). (Id. at 190-95, Ex. 52 (July email chain).)

17 Plaintiff also noted that her requests were motivated by concerns about her father who was in the hospital with a kidney infection at the time. (Pl. Dep. at 204.)

18 Although Barlow disagrees with this characterization, the Court must resolve disputed testimony in Plaintiff's favor at this juncture.

Also in April 2016, Plaintiff visited her oncologist. (DSMF ¶ 117.) She was referred for a biopsy related to her cancer remission treatment, the results of which were indeterminate (id.); she testified that at a follow-up, her doctor told her she need to make "some lifestyle changes," and since she had been unsuccessful in easing her workload and associated stress, her doctor "strongly recommended" that she file a request for accommodation under the ADA and wrote her a letter in support (Pl. Dep. at 201-204; see also DSMF ¶ 118).

Around April 15, Plaintiff informed Defendant's Employee Relations Department of the note from her doctor. (DSMF ¶ 124; see also 1st Richardson Dep. at 73, 86-87 Ex. 7 (April 16, 2016 email from Plaintiff).) Her case was assigned to Employee Relations consultant Jennifer Richardson. (DSMF ¶ 125; see also 1st Richardson Dep. at 9, 73.) On or around April 21, 2016, Richardson walked Plaintiff through the ADA accommodation request process and gave Plaintiff paperwork to complete. (DSMF ¶ 126.) Plaintiff stated that during her meetings with Richardson, she specifically "raised [her] concern . . . that [she] would face retaliation from Mr. Barlow and Mr. Webster . . . for seeking an ADA accommodation," and that Richardson "assured [her] that retaliation was forbidden," but also volunteered that the granting of an accommodation "would not necessarily protect an employee from being terminated in a restructuring" (Pl. Aff. ¶ 10; see also R-DSMF ¶ 127 ("Plaintiff did not raise the subject of restructuring and had no idea that a restructuring was contemplated or ongoing at the time.")).¹⁹

19 According to Richardson, Plaintiff never raised a concern over retaliation, but did ask if her accommodation would prevent her from being impacted by a restructuring. (1st Richardson Dep. at 43, 93, 95-96.) Given the posture of the case, the Court must accept Plaintiff's version of events.

Around April 19, Plaintiff recorded a conversation with Barlow concerning her request for an accommodation. (DSMF ¶ 119.) Plaintiff says she recorded this conversation (without Barlow's permission) because she was fearful of retaliation, although she made no mention to Barlow about recording the call. (DSMF ¶ 120.) Plaintiff testified that, during this call, Barlow responded to her in a hostile and aggressive manner, which persisted throughout the remainder of her time at Defendant. (DSMF ¶ 121.) Though Barlow testified that he was supportive of her request for an ADA accommodation (Barlow Dep. at 175-76, 179-80) and Richardson testified that he was "agreeable" to and "very supportive" of it (1st Richardson Dep. at 86, 101), Plaintiff states that he was only supportive when he was in the presence of third parties, such as HR personnel, and acted with anger and hostility over Plaintiff's request and the fact that she sought it from HR without clearing it with him first (Pl. Aff. ¶ 11).

Plaintiff completed the paperwork for her accommodation around May 4, 2016. (DSMF ¶ 120; R-DSMF ¶ 129.) In it, Plaintiff set forth four accommodations, which were signed off by her physician:

• Patient should not to be assigned to excessively demanding workloads on a regular basis. Patient's scope of work assignments should no longer equate to more than 45 hours weekly on average. Patient to be assigned reasonable amount of work commensurate with others of equivalent job responsibilities (grade level and role scope).

• Patient should not be expected, as part of success in her assigned position, to assume the performance expectations and/or workloads that are reasonably attributed to those of other colleagues or associates within the organization to lead or assume.

• Patient's current and future workload assignments, management, timelines and resource support behind them should be mutually discussed and agreed upon by Patient and her management. This is to ensure that timely decisions and actions are considered in support of the Patient's welfare.

• Patient must have the flexibility to maintain a balanced quality of life including time for creating an active, healthy lifestyle. This includes working-from-home which is a policy that [Defendant\ supports globally, ability to go to appointments related to overall health, continued medical care, well-being and/or similar.

(DSMF ¶ 130.) After receiving Plaintiff's paperwork, Richardson let Plaintiff know she would review the same and get back to her. (DSMF ¶ 131.) On May 20, 2016, Plaintiff asked Richardson for help navigating the process with Barlow. (DSMF ¶ 132.) Richardson then met with Barlow alone, and then recommended that she, Plaintiff, and Barlow have a conference call to discuss the matter further. (DSMF ¶ 133.) The three met by video- or voice-conference on May 31, 2016; and while he asked for clarification about some of the four proposals above and gave some pushback on one or two, he was not ultimately opposed to any of the requests. (Barlow Dep. at 179-80; 1st Richardson Dep. at 100-08.) Plaintiff followed up with Richardson throughout June to finalize her requested accommodations, and Plaintiff executed the final paperwork on June 29, 2016. (See May and June 2016 emails between Plaintiff and Richardson [Doc. 98-31]; see also Eligibility for Requested Accommodation Letter date June 29, 2016 [Doc. 98-21].) The approved accommodation included the following four restrictions corresponding to the earlier letter's proposals:

• Scope of work assignments should not exceed 45 hours a week on average.

• Workload assignments will be discussed in advance in order to scope out responsibilities and timelines.

• Should additional responsibilities arise outside of current job performance role and expectations, it will be discussed with immediate manager.

• Continue to work from home and have the flexibility to go to quarterly doctors' appointments and diagnostic visits as needed.

(See Eligibility for Requested Accommodation Letter [Doc. 98-21].) Richardson told Plaintiff at the time her accommodation began that she (Richardson) would follow up in six months to talk about how it was working and whether they needed to revisit the terms if something changed with Plaintiff's medical condition. (DSMF ¶ 140.)

When it came to implementing the accommodation, Barlow depended on Plaintiff to tell him whether her workload was requiring more hours than allowed by her restrictions. (DSMF ¶ 137; R-DSMF ¶ 137; see also Barlow Dep. at 195.) Although the parties agree that Barlow followed up with Plaintiff at least every couple of weeks (whether by email or during conversations) to encourage the Plaintiff to abide by the 45-hour work limit; according to Plaintiff, this encouragement was spurious, since Barlow still left her with too much work to be done in under 45 hours per week, including putting tasks back on her plate that had been transitioned to coworkers. (Barlow Dep. at 194-95; Pl. Dep. at 235-40.)²⁰ In one instance around August 7, 2016, Plaintiff complained to Webster that an assignment from Barlow would interfere with her accommodation,²¹ but Webster put off her concern because (a) Barlow was on vacation, and (b) Plaintiff would never actually receive the assignment because she was set to be laid off before it came to fruition. (Webster Dep. at 76-78, 80-84, 86, Ex. 63 [Doc. 86-52] (Aug. 7, 2016 email from Plaintiff to Webster).)

20 Webster testified that to honor Plaintiff's accommodation, when new assignments were given the Plaintiff, old assignments were taken away; however, when asked if he did anything to ensure that this give-and-take process actually happened, he admitted he did not. (Webster Dep. at 83-84.) Plaintiff states that she received new assignments and that assignments that were purportedly taken of her plate were either never fully reassigned or were returned to her. (Pl. Aff. ¶ 14.)

21 Plaintiff explained that Barlow was attempting to reassign her a project that he had previously taken offer her plate in May, and specifically stated that returning the project to her (because his relationship with a project collaborator had soured) would "be in violation[] of the ADA accommodations." (Webster Dep. at 78, Ex. 63.)

Defendant stresses that Plaintiff never complained to Richardson or anyone else in the Employee Relations Department that her accommodation was not being honored (DSMF ¶ 141), but then again, as explained below, she was separated soon after it was implemented.

I. Plaintiff's Separation as Part of the 2016 Restructuring

As noted, in early 2016, planning began for the August 2016 Limited Restructuring. (DSMF ¶ 147.) The goals of the Restructuring were broader than a mere reduction in headcount, although that was one of the components considered. (DSMF ¶ 148.) Webster testified that that they were "given both a budget and [] guidelines . . . that we needed to adhere to," the latter defining the "appropriate organizational health parameters for the amount of employees and their respective grade levels in the organization," or in other words, a "bell curve" type of "distribution of grade levels" to fit the new "corporate standard." (Webster Dep. at 172-74.) Webster said the new model did not require as much experience in the various roles within the SPM Group. (Id. at 174-75.) To restructure his group, Webster asked his subordinate directors to "structure out an organizational design" to meet the budget, guidelines, and health metrics; and then he and they "worked through and assessed each and every person across the organization," to determine whether they fit "these newly-scope[d] roles," and whether they had "various characteristics [that] would be needed in the organization as the landscape was dramatically changing." (Id. at 175-77.) Barlow, meanwhile, testified that his superiors, including Webster, asked him to present different business models for how the CAM Team would be structured and operate given different constraints on what functions and groups his team would be supporting. (Barlow Dep. at 213-14, 224-25.) Barlow explained that he, Webster, and other SPM Group directors also "looked at the various characteristics and qualifications of each team member"; that he provided "input" for each based upon his "personal experience" with them²²; and that they also considered which members of his team—including Plaintiff—could perform the functions that were to remain in the group. (Id. at 224-25.) Barlow stated that he was not aware of how Plaintiff ranked among the SPM Group's Grade 12 employees, and did not intentionally try to give her a low score. (Barlow Decl. ¶ 5.)

22 In paragraph 153 of its statements of fact, citing only (and entirely generally) to the Business Case, Defendant states that the "SPM Group predetermined that the following characteristics would be key to the success of the newly reorganized group and should be used for purposes of the assessment of Grade 12 employees: collaboration, influence, communications, leadership, and technology." (DSMF ¶ 153.) A portion of the Business Case [filed at Docs. 86-23, 99-2] does list out these five criteria and what appears to be the associated scores for the SPM Group's Grade 12 employees [see Doc. 99-2 at 9]; however, there is no testimony on how those criteria were developed, who was responsible for making the assessments of each employee or how those assessments were normalized across the various teams in the SPM Group, or the basis for Plaintiff's scores within each category. Indeed, it does not appear that in their discussions of the "assessments" of the various employee's "characteristics," either Webster or Barlow had access to the Business Case. (See generally Webster Dep. at 176-177; Barlow Dep. at 214-217.) Based upon the present record, the purported assessment of the listed employees on these characteristics is wholly opaque.

In any event, that iterative process crystalized into the Business Case, which in part collected the assessments of the SPM Group's Grade 12 employees along five criteria—collaboration, influence, communications, leadership, and technology—and then ranked them according to their combined total score along these axes; these rankings then identified the four Grade 12 employees (out of eleven) to be separated. (Barlow Dep. at 213-14, 224-25; Business Case [Doc. 99-2] at 9; DSMF ¶ 157.) It appears that of the Grade 12 employees separated, two were men and two were women. [See Doc. 99-2 at 9.] Plaintiff was listed among them as an "assessment selection." [Id.]

Barlow testified that early in the process, he was informed that the budget might require the elimination of a member of his team, and that only later did Webster inform him that the functions associated with Plaintiff's position²³ were being eliminated from the SPM Group.²⁴ (Barlow Dep. at 214-17.) Barlow testified that he did not make any direct recommendation to Webster about who should be eliminated and that Webster did not solicit direct input on who should be separated; Barlow was simply informed of the decision. (Id. at 217, 223; see also PSAF ¶¶ 10, 12.) Plaintiff was the only person from Barlow's team to be let go during the Restructuring. (Barlow Dep. at 226.)²⁵

23 Barlow identified functions such as supporting the Cloud and Security teams as some of the functions Plaintiff performed that were moved elsewhere. (Barlow Dep. at 217-22.)

24 In paragraph 149 of its statements of fact, citing to these portions of Webster and Barlow's depositions, Defendant offers that "one of the goals [in the SPM Group] was to improve the overall organizational health parameters by narrowing the number of Grade 12 employees in the Department from eleven to seven. (DSMF ¶ 149.) The substance of that statement of fact—that the restructuring would eliminate four Grade 12 employees in the SPM Group—does not appear in cited testimony, nor can the Court locate any such testimony elsewhere in their depositions.
Likewise, in paragraph 150, Defendant states that "functions of certain positions (including Plaintiff's) were being eliminated in their entirety while others were being added to the group. (DSMF ¶ 150 (citing Barlow Dep. at 215-17).) The cited testimony, however, only pertains to eliminated the functions of Plaintiff's position. Barlow never spoke of other functions being eliminated from his team, much less other functions being added during the Restructuring. Only after the Restructuring was completed were another function and position added, which opened up a new position on Barlow's team (see Barlow Dep. at 223).

25 While the Court will not consider Webster and Barlow's testimony on the elimination of Plaintiff's position (or the functions associated with it) in its analysis below, it includes the testimony from their depositions in the factual recitation.

In mid-August 2016, Barlow notified Plaintiff of her selection for separation via WebEx conference software using a script prepared for this purpose. (DSMF ¶ 162.) Barlow did not mention Plaintiff's disability, compensation, or gender during their conversation. (DSMF ¶ 163.) He simply told her that her position had been eliminated. (PSAF ¶ 10.)

Neither then, nor at any other point during her employment, did Plaintiff report any allegations of discrimination or retaliation. (DSMF ¶ 164.) Plaintiff also failed to take advantage of Defendant's process for appealing her separation decision, did not recall applying for any of the open positions with Defendant after being notified of her impending separation, and instead hired an attorney to pursue her claims. (DSMF ¶¶ 165-67.)

J. Other Separations and Appeals

After the Restructuring was implemented, three women in the SPM Group appealed their separation decisions on the grounds that the 2016 Restructuring allegedly affected women adversely. (DSMF ¶ 168.) The Employee Relations Department investigated the appeals and concluded that there was no merit to the allegations. (DSMF ¶ 169.) Even so, the depth of those investigations is unclear. One of the three women, Marcia Tonetto, who had explained to HR that she felt "targeted as a woman"—in part because a "disproportionate amount of women and senior women [] were laid off" during the Restructuring—did not receive any response to her appeal until the "last minute" for submitting a release in exchange for severance, and received "no details" or other explanation when HR provided its determination that "nothing untoward had been found." (Tonetto Dep. at 47-49.) As a result, she had "very little time to think about" the findings, "decided to sign [the release and] move on, but "did not feel [that she] was treated right." (Id. at 47.) Another, Ana Leung, challenged the HR findings, documenting that the percentage of Grade 11 and 12 women separated in the SPM Group was much greater than that of men (despite a greater male representation in the Group to begin with), and testified that the HR representative apologized—perhaps sarcastically or perhaps sincerely—for the cursory nature of his report that there were insufficient data points to substantiate her allegations of discrimination. (Dep. of Ana Leung [Doc. 116] at 58-60, 86-88, 90-92; see also DSMF ¶ 209.)²⁶

26 Defendant offers testimony that, overall (without respect to employee grade), more men than women were separated from the Marketing Department during the 2016 Restructuring. (Richardson Decl. ¶ 17.)

K. Kurt Rosenthal

Kurt Rosenthal, another Grade 12 employee, was selected for separation as part of the 2016 Restructuring. (DSMF ¶¶ 176-77.) During the thirty days between when he was notified of his pending separation and his upcoming separation date, Rosenthal applied for many other positions with Defendant. (DSMF ¶ 178.) Among others, he applied for a position as a Marketing Manager in Defendant's SPM Group, which Barlow interviewed him (and others) for, and into which he (Rosenthal) was hired. (DSMF ¶¶ 179-81.) Accepting this position in September 2016, Rosenthal was reduced from a Grade 12 to a Grade 10 and his compensation was decreased. (DSMF ¶ 182; Dep. of Kurt Rosenthal [Doc. 113] at 10-12.) Rosenthal testified that in the position, he did not replace Plaintiff. (Rosenthal Dep. at 34.) And while Webster and Barlow testified that Rosenthal primarily managed a partnership with Ericsson (which was not one of Plaintiff's responsibilities) (see Webster Dep. at 202; Barlow Dep. at 230); other former co-workers have testified that the Ericsson partnership was verging on collapse,²⁷ and that Rosenthal instead took up functions that Plaintiff had performed (see Tonetto Dep. at 73; Garza Dep. at 41-45, 88). Indeed, within a few months after Rosenthal's hiring, the Ericsson relationship was in fact "put on hiatus." (PSAF ¶ 19; Webster Dep at 202-03.) Even so, Rosenthal remained in the SPM Group until April 2018, when he moved into a Grade 12 role in an entirely different department. (DSMF ¶ 186; PSAF ¶ 20.)

27 The job description associated with the position also did not mention the Ericsson partnership. (Barlow Dep. at 228, Ex. 56 (job posting).)

III. LEGAL ANALYSIS

Based upon the foregoing, Plaintiff asserts claims that Defendant violated the ADA by terminating her employment in retaliation for seeking and obtaining an accommodation²⁸; the EPA by failing to pay her comparably to her male counterparts; and Title VII when it assigned paid her less than similarly situated male coworkers and discharged her as part of the 2016 Restructuring.²⁹ (Sec. Am. Compl. [Doc. 52] ¶¶ 24-62.) In considering Defendant's motion for summary judgment, the Court begins with the retaliation claim arising under the ADA, then turns to the pay-related claims under the EPA and Title VII, and finally addresses Plaintiff's remaining Title VII claim.

28 Although Plaintiff's operative complaint asserts separate causes of action for discrimination and retaliation under the ADA (see Sec. Am. Compl., Counts III, IV) and her EEOC charge of discrimination alleges that she was denied a reasonable accommodation [see Doc. 52 at 15], she makes clear in her response to Defendant's motion for summary judgment that she now maintains only a claim of retaliation. [See Doc. 95 at 4-11; see also Doc. 103 at 5, n.1.] (See also R-DSMF ¶¶ 203-06.) To the extent Plaintiff sought to assert a disability discrimination or failure-to-accommodate claim, she has abandoned such claims. See, e.g., Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) ("[T]he onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned." (citing Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994))); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (finding claim abandoned when argument not presented in initial response to motion for summary judgment); Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at the district court is sufficient to find the issue has been abandoned). Accordingly, the undersigned RECOMMENDS that Defendant's motion for summary judgement be GRANTED with regard to any non-retaliation claims under the ADA.

29 Likewise, while Plaintiff's complaint mentions verbal harassment and extra work within her Title VII cause of action (Sec. Am. Compl. ¶¶ 24-27), she has not responded to Defendant's summary judgment arguments that they fail, and only argues in support of her disparate pay and wrongful discharge claims. [See Doc. 95 at 14-29.] As before, the undersigned therefore RECOMMENDS that Defendant's motion be GRANTED as to Plaintiff's Title VII claims except as they relate to pay discrimination and her discharge.

A. ADA Retaliation Claim

In addition to prohibiting discrimination on the basis of an employee's disability, the ADA also prohibits retaliation "against any individual because such individual has opposed any act or practice made unlawful by this chapter . . . ." 42 U.S.C. § 12203(a). This protection extends to all activity and expression protected by the ADA, including making a request for a reasonable accommodation under the statute. Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir. 2016) (citing Standard v. A.B.E.L. Servs. Inc., 161 F.3d 1318, 1328 (11th Cir. 1998)). To establish a prima facie case of retaliation under the ADA, a plaintiff must show that (1) she engaged in statutorily protected activity, such as requesting an accommodation; (2) she suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse action. Standard, 161 F.3d at 1328. "[T]he same analytical framework applies to retaliation claims as applies to other employment discrimination claims, including the availability of the McDonnell Douglas presumption." Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999); see also Batson v. Salvation Army, 897 F.3d 1320, 1328-29 (11th Cir. 2018). Thus, if a plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse employment action. Connelly v. WellStar Health Sys., Inc., 758 F. App'x 825, 832 (11th Cir. 2019). If the defendant does so, the plaintiff must show that the proffered reason is actually pretext for retaliation. Id.

With regard to the prima facie case, the parties agree that Plaintiff engaged in protected activity by requesting an accommodation and that she suffered an adverse action when she was separated as part of the 2016 Restructuring, but disagree about whether she can establish a causal connection between the two. [See Doc. 86-62 at 8-12; Doc. 95 at 5-12.] Defendant argues that the temporal proximity between her request for a reduced workload is insufficient to establish causation, and that any other evidence adduced by Plaintiff fails to demonstration a causal link. [Doc. 86-62 at 9-12; Doc. 103 at 6-9.] Plaintiff, meanwhile, maintains that that the proximity between her accommodation should be measured from the date it became effective, and was therefore sufficiently close to her discharge to establish causation. [Doc. 95 at 9-11.] Plaintiff further contends that Barlow's treatment of her following her various requests for accommodation (i.e. her requests for a reduced workload) provides additional evidence to support the inference that her inclusion in the 2016 Restructuring was a result of those requests. [Id. at 11-12.]

For a plaintiff to establish a causal connection, she need only show that the decision maker was aware of the protected conduct and that the protected activity and the adverse action are not "wholly unrelated." Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir.2002) (internal citation omitted). "Close temporal proximity between the protected activity and the adverse action may be sufficient to show that the two were not wholly unrelated." Id. at 716-17 (quotation marks omitted); see also Singleton v. Pub. Health Tr. of Miami-Dade Cty., 725 F. App'x 736, 738 (11th Cir. 2018) ("[W]here a decision-maker becomes aware of protected conduct, a close temporal proximity between the decision-maker's acquisition of that knowledge and an adverse employment action will generally be enough to create a factual issue on the causation element.") (citing Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999)). Along these lines, without other evidence to establish causation, a seven-week gap is normally close enough to alone establish causation, while a three- to four-month gap is not. Singleton, 725 F. App'x at 738 (citing Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) and Farley, 197 F.3d at 1337).

In support of its position that Plaintiff cannot establish causation, Defendant contends that the temporal proximity should be measured from the when Plaintiff began requesting a reduction in her workload in the second half 2015, but certainly no later than when Plaintiff submitted a "formal request for an accommodation" in April 2016. [See Doc. 86-62 at 11-12.] However, Defendant offers no authority for its contention that the proximity must be measured Defendant's first awareness of Plaintiff's desire for an accommodation, and the undersigned cannot agree. Any time an employee requests an accommodation, she engages in protected activity so long as she "had a good faith, objectively reasonable belief that [s]he was entitled to those accommodations under the ADA." Standard, 161 F.3d at 1328; see also Monroe v. Fla. Dep't of Corr., 793 F. App'x 924, 928 (11th Cir. 2019). Accordingly, each of Plaintiff's requests that meets this standard is equally protected under the ADA, and the temporal proximity should be measured from her last protected request. See Groover v. Fayette Cty., Ga., No. 3:17-cv-200-TCB-AJB, 2018 WL 9490076, at *17 (N.D. Ga. July 27, 2018) (holding that plaintiff "satisfied the causal connection between the protected conduct and the adverse action since her termination occurred within the same month as her latest request for additional leave"), report and recommendation adopted, 2018 WL 9490350 (N.D. Ga. Sept. 17, 2018); see also Jones v. Bernanke, 557 F.3d 670, 680 (D.C. Cir. 2009) (holding that anti-retaliation statutes "protect employees who engage in any protected activity," and, thus, it is improper to consider only the "original protected activity" because doing so would mean that "temporal proximity could support an inference of retaliation only in the immediate aftermath of the employee's first protected act"); Lavalle Cervantes v. Int'l Hosp. Assocs., 261 F. Supp. 3d 171, 188 (D.P.R. 2016) (determining that where a sequence of protected events occurred in the months preceding an adverse action, the date of the last protected activity "provides the starting point for the timeframe buttressing the temporal proximity calculus"); Infantolino v. Joint Indus. Bd. of Elec. Indus., 582 F. Supp. 2d 351, 359 (E.D.N.Y. 2008) (concluding that "the relevant date in determining the existence of a causal connection is the date plaintiff last engaged in protected activity").³⁰

30 The Tenth Circuit has concluded that "an inadequate request for an accommodation," which does not trigger the employer's obligation to engage the employee in an interactive process to identify a reasonable accommodation—for instance, because it does not identify the employee's disability or fails to explain the accompanying limitations—will not constitute protected activity. Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1188 (10th Cir. 2016) (citing Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171 (10th Cir. 1999)). Were it applied to this case, this approach would also counsel against using Plaintiff's earliest requests for a workload reduction to measure temporal proximity, since it not clear that they would have been protected under the ADA.

With this principle in mind, it is clear that the August 2015 and April 2016 dates are not suitable starting points in the present calculation. While Plaintiff did make a formal request for an accommodation with the Employee Relations in mid-April 2016, the more appropriate date to locate the beginning of the temporal period is sometime between May 31, 2016, when Plaintiff met with Richardson and Barlow to negotiate the proposed accommodations, and June 29, 2016, when Plaintiff finalized the documentation for approval of her request. There is nothing to indicate that before the May 31 meeting with Barlow, Defendant even engaged Plaintiff in the interactive process to identify a reasonable accommodation,³¹ and there is nothing to suggest it was positioned to approve the accommodation before Plaintiff finalized her paperwork associated with the request on June 29. Using the later date, Plaintiff's separation was approximately seven weeks after her request was finalized and approved.

31 The ADA regulations contemplate that an employer and employee may need to engage in an "interactive process" to determine the appropriate reasonable accommodation. 29 C.F.R. § 1630.2(o)(3).

Significantly, though, her final request for an accommodation was not Plaintiff's last protected activity in this case. Courts in this Circuit and elsewhere have consistently held that complaints that proffered accommodations are inadequate also amount to protected expression under the ADA. See, e.g., Norman v. S. Guar. Ins. Co., 191 F. Supp. 2d 1321, 1335 (M.D. Ala. 2002) (holding that plaintiff "insisting upon reasonable accommodation for her disability," was protected); accord Guzman-Rosario v. United Parcel Serv., Inc., 397 F.3d 6, 11 (1st Cir. 2005) (an ADA retaliation "claim is usually made by one who requests an accommodation or complains about a refusal to accommodate"); E.E.O.C. v. Placer ARC, 114 F. Supp. 3d 1048, 1060 (E.D. Cal. 2015) (finding that a "complain[t] that the accommodation provided by [her employer] was inadequate" was protected activity). As late as August 8, 2016, Plaintiff complained to Webster that Barlow had reassigned a project to her that would interfere with her accommodation. Given that Plaintiff was laid off approximately a week later, there is no doubt that a reasonable factfinder could conclude that Plaintiff's protected activity was close enough in time to her separation to raise an inference of causation.³²

32 Based upon the foregoing, the Court need not address Plaintiff's further contention that simply making use of the accommodation amounted to protected activity. As appealing as it is, Plaintiff cites no authority for this proposition, and the Court was unable to locate any on its own.
The Court also notes that the parties have largely overlooked that the relevant date of the adverse action for purposes of establishing temporal proximity is not necessarily the date that Plaintiff was discharged as part of the Restructuring, but rather when she was selected for inclusion in it. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272-73 (2001) (locating the relevant end point of proximity analysis in supervisor's decision to transfer plaintiff); see also Brown v. Metro. Atlanta Rapid Transit Auth., 261 F. App'x 167, 175-76 (11th Cir. 2008) (identifying the date plaintiff was added to a reduction-in-force list as the date of the adverse action for purposes of temporal proximity). Indeed, Webster testified that he did nothing to address Plaintiff's complaints in part because she was already set to be separated in the Restructuring. In any event, the foregoing analysis makes clear that regardless of the specific dates utilized, the decision to separate Plaintiff was made in very close temporal proximity to her requests for an accommodation.

Were that not enough, Plaintiff has also offered evidence beyond temporal proximity that could lead a reasonable factfinder to conclude that Plaintiff's requests for an accommodation were related to her separation. Although Defendant focuses on (1) Barlow reminding Plaintiff to utilize the accommodation, (2) the fact that Plaintiff did not complain to the Employee Relations Department about her accommodation, and (3) that it did not fire her before the Restructuring, to argue that there is no connection between her protected activity and her separation; in doing so, it ignores other evidence and the posture of the case, and asks the Court to resolve factual disputes in its favor. The present question is not whether Defendant's cited evidence, if believed, might allow a reasonable factfinder to conclude that Plaintiff's separation was not motivated by her protected activity; but rather, whether there is any evidence that would reasonably support the inference that the termination of her employment was the result of protected activity. And there is. Plaintiff testified that Barlow became hostile towards her in response to her requests for a reduced workload to address her health in November 2015; was passive-aggressive (or simply aggressive) with her after her accommodation requests in April 2016; remained antagonistic to her even after the Employee Relations Department stepped in to assist her with her accommodation; and despite paying lip-service to the accommodation, failed to honor its terms by assigning a workload that was inconsistent with the 45-hour-per-week restriction, so much so that Plaintiff felt the need to complaint to Webster. At this time, the Court must accept Plaintiff's testimony. Her testimony about Barlow's hostility, combined with the close temporal proximity, creates a triable issue as to causation, and Defendant's argument to the contrary is without merit. Accordingly, for purposes of summary judgment, Plaintiff has established her prima facie case.

Under McDonnell Douglas, the burden now shifts to Defendant to offer a legitimate, nondiscriminatory reason for Plaintiff's termination. Defendant has done so, pointing to the 2016 Restructuring, the purported elimination of Plaintiff's position (or her position's functions), and Plaintiff's rank among eleven other Grade 12 employees in the SPM Group. For the reasons set forth above, however, the Court will not consider Defendant's proffered evidence regarding the elimination of Plaintiff's position in support its pretext analysis.³³ As a result, Defendant's reasons for Plaintiff's separation is limited to her ranking. The burden now shifts back to Plaintiff.

33 Because Defendant failed to preserve the relevant documentation, the only evidence that Plaintiff's position was eliminated is the testimony of Webster and Barlow. Even if the Court were to consider their testimony, however, the result would not change. The portion of Business Case ranking Plaintiff among the other Grade 12 employees identifies her as a "assessment selection," and not a "position elimination." [Doc. 99-2 at 4.] Notably, in contrast, it does list other Grade 12 employees as "position eliminations." [Id.] Based upon this, a reasonable factfinder could dismiss Webster and Barlow's testimony and conclude that some or all of a Plaintiff's functions were retained during the Restructuring, and that she was in fact selected for separation solely as a result of the ranking. Contrary to Defendant's position on the matter, the explanation for Plaintiff's separation is far from clear given the record.

Plaintiff argues that a reasonable jury could conclude that the reasons provided by Defendant for her inclusion in the Restructuring were merely pretextual, and while it is a close call, the Court agrees. To demonstrate pretext, a plaintiff must show enough "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). "Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason." Morgan v. Orange Cty., Fla., 477 F. App'x 625, 628 (11th Cir. 2012) (quoting Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000)) (quotation marks omitted). Even so, a plaintiff can rely on a wide variety of circumstantial evidence to prove that the employer's proffered reason for discharging him was pretextual, and that the real reason was discriminatory or retaliatory in nature. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328-29 (11th Cir. 2011) ("A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents 'a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.'"). Indeed, the same circumstantial evidence supporting a prima facie case may be used in the pretext analysis. For example, temporal proximity is evidence of pretext, even if it does not establish pretext in isolation. Jackson v. Hennessy Auto, 190 F. App'x 765, 768 (11th Cir. 2006); Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir.2006) (finding a period of "no more than two weeks" as evidence of pretext). Provided that there is sufficient evidence discrediting the employer's proffered reasons, the evidence supporting the prima facie case also may be sufficient to survive summary judgment. Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1446 (11th Cir. 1998) (citing Tidwell v. Carter Prods., 135 F.3d 1422, 1426 (11th Cir. 1998)).

Plaintiff has presented sufficient inconsistencies and weaknesses with regard to Defendant's stated reason for her separation. First, Plaintiff highlights the fact that she received almost exclusively praise and positive feedback from Barlow and coworkers regarding her performance prior to her separation, as well as the fact that there were no negative performance evaluations, performance improvement plans, or other documentation to substantiate any performance problems or interpersonal problems Plaintiff's purportedly had with her co-workers. Plaintiff has also underscored the fact that while Defendant has offered testimony that Plaintiff's position was eliminated as part of the Restructuring, the Business Case contradictorily lists her as an "assessment selection" and not a "position elimination," calling into question Defendant's stated reasons.³⁴ Most damning in the Court's eyes, however, is that the assessment resulting in Plaintiff's separation was (1) conducted by Barlow (2) in the exact same time period that (a) Plaintiff made her accommodation requests and (b) that Plaintiff complained that Barlow was himself becoming hostile and antagonistic towards her as a result of her requests, and (3) is based entirely on subjective criteria such as "[c]ollaborates effectively with Senior Management," "[i]nfluencing communication style and communication skills," and "[a]bility to work as a team leader," all of which would be directly impacted by Plaintiff's relationship with Barlow. [See Doc. 99-2 at 9.] There is nothing in the record to suggest that the application of these assessment criteria was normalized across Directors in the SPM Group, and indeed, Barlow testified that he was not aware of how other employees in Plaintiff's grade level were scored. (Barlow Decl. ¶ 5.) As a result, the only basis Barlow had for evaluating Plaintiff was his "personal experience" with her. (Barlow Dep. at 224-25.) In combination with Plaintiff's testimony that Barlow was upset by her requests for accommodations and became increasingly hostile as the requests culminated in the granting of her accommodation, along with the temporal proximity discussed above, a reasonable factfinder could conclude that he scored her lower on those subjective criteria precisely as a result of her requests.

34 Although the Court will not consider Webster and Barlow's testimony in support of Defendant's motion, to the extent that testimony creates inconsistencies with regard to Defendant's stated reasons for Plaintiff's separation, and therefore supports Plaintiff's pretext arguments, it should be considered.

Accordingly, summary judgment should be DENIED with regard to Plaintiff's claim for retaliation under the ADA.

B. Pay-Discrimination under the EPA and Title VII

Plaintiff also raises pay discrimination claims under the EPA and Title VII, arguing that she was paid less than male comparators. The Equal Pay Act prohibits gender-based discrimination in rates of pay to employees. 29 U.S.C. § 206(d); Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir. 1992). Specifically, the Equal Pay Act provides:

No employer . . . shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . . ."

29 U.S.C. § 206(d)(1). Thus, to prove an Equal Pay Act claim, a plaintiff must show, inter alia, that she was paid less than a male employee "for equal work on jobs the performance of which requires equal skill, effort, and responsibility." Mulhall v. Advance Sec., Inc., 19 F.3d 586, 590 (11th Cir. 1994). In other words, the jobs must be "substantially equal." Edwards v. Fulton Cty., Ga., 509 F. App'x 882, 886 (11th Cir. 2013) (citing Arrington v. Cobb Cty., 139 F.3d 865, 876 (11th Cir. 1998)). When a plaintiff makes a prima facie case under the Equal Pay Act, the burden shifts to the defendant to prove one of the affirmative defenses, such as demonstrating seniority, merit, or other gender-neutral factor accounts for any pay disparity. See Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1018 (11th Cir. 1994); see also Steger v. Gen. Elec. Co., 318 F.3d 1066, 1078 (11th Cir. 2003).

Title VII also prohibits gender-based wage discrimination. See Miranda, 975 F.2d at 1527-31. A plaintiff establishes a prima facie case of gender-based wage discrimination "by showing that she occupies a job similar to that of higher paid males." Meeks, 15 F.3d at 1019. Title VII's comparator standard is somewhat more "relaxed," and a plaintiff need only show that her job was "substantially similar" to her higher-paid comparators. Teal v. City of Dahlonega, No. 2:09-cv-187-RWS-SSC, 2011 WL 7006248, at *10 (N.D. Ga. Aug. 24, 2011), report and recommendation adopted, 2012 WL 95555 (N.D. Ga. Jan. 12, 2012); see also Lewis v. Union City, 918 F.3d 1213, 1218 (11th Cir. 2019) (substantially similar in "all material respects"). Once a plaintiff establishes a prima facie case, the analysis follows the burden shifting framework described above, with the defendant able to offer a legitimate, non-retaliatory reason for the adverse employment action. Meeks, 15 F.3d at 1019. Upon the offer of that justification, to survive summary judgment, the plaintiff must show that the proffered reasons are actually pretext for discriminatory intent. Id.

Although the analyses are similar:

there is a significant difference between Title VII and the EPA as to both elements and burdens of proof. Under the EPA, the onus is on the employer to establish that the pay differential was premised on a factor other than sex. Under Title VII, however, the plaintiff must prove that the employer had a discriminatory intent. If the evidence is in equipoise on the issue of whether a salary differential is based on a "factor other than sex," the plaintiff is entitled to judgment on her EPA claim. However, the employer prevails on the Title VII claim.

Meeks, 15 F.3d at 1019. In relation to summary judgment, then, the ultimate burden for an EPA claim falls on the employer to demonstrate that a factor other than sex was responsible for any differentials in pay between comparators, whereas for Title VII claims, the ultimate burden of establishing pretext falls on the employee. Miranda, 975 F.2d at 1533; see also Steger, 318 F.3d at 1078.

Here, the parties do not dispute that Plaintiff can make out a prima facie case of pay discrimination—the parties agree that the relevant comparators are the eleven Grade 12 employees in the SPM Group based in the United States (Plaintiff and ten others)—and Defendant admits that "there was a difference in pay between Plaintiff's salary and the salaries of 10 other U.S.-based Grade 12s in the SPM [Group]." [Doc. 103 at 2-3; see also Doc. 86-62 at 3-4; Doc. 95 at 30-31.] The Court therefore turns to Defendant's explanations for those pay differences in salary.³⁵

35 Plaintiff does not appear to contend that her bonuses fell short of those of her male comparators, likely because she received some of the highest possible bonuses during the relevant period.

As described above, it is undisputed that Defendant's employees' salaries are determined largely by grade, geography, and time in grade. Since the comparators are limited to Grade 12 SPM employees in the United States, Defendant focuses on the latter two factors in explaining the differences in pay. In particular, Defendant highlights that only two of the other relevant Grade 12 employees were in the same SAP area Plaintiff, and that the difference in pay with the other eight employees is attributable to geography and related market forces. [Doc. 86-62 at 5-6.] It then explains that the small pay differences—of approximately 1.5% and 3%—between Plaintiff's salary and that of the two male employees in the same SAP area is the result of their much longer time in Grade 12—approximately three to seven times longer than Plaintiff. [See Doc. 86-28 (compensation charts for 2 other employees in Plaintiff's SAP); Doc. 99-6 (compensation charts for all eleven Grade 12 SPM employees).]

In response, Plaintiff attempts to bypass Defendant's explanation altogether, contending that the eleven employee's compensation ratios, rather than their actual compensation, should be compared in determining whether pay discrimination occurred. [Doc. 95 at 31-33.] Plaintiff explains that because the compensation ratios account for the geographical differences—since an employee's compensation ratio is based upon the midpoint of the compensation band and the employee's salary based upon his or her grade and SAP—they should be used to directly compare how all of the Grade 12 SPM employees were compensated without regard to any specific employee's SAP. [Id.] (See also R-DSMF ¶¶ 72, 76.) And because the men's compensation ratios, on average, exceeded the women's ratios,³⁶ Plaintiff argues that discrimination should be inferred. [Doc. 95 at 33-35.]

36 The "average" compensation ratios here are calculated by Plaintiff using the compensation ratios for every year that a man or woman was in a Grade 12 SPM position, adding them together, and dividing by the total number of years.

The Court cannot agree with Plaintiff's approach, for multiple reasons. Most importantly, in a single-plaintiff pay discrimination case, the concern is over disparate treatment—that is, the actual pay differences between a plaintiff and her male counterparts—and whether they are attributable to gender or some other factor. As the Eleventh Circuit has acknowledged, "[t]he Supreme Court has interpreted section 206(d)(1) of the Equal Pay Act to preclude disparate impact claims," Adams v. Fla. Power Corp., 255 F.3d 1322, 1325 (11th Cir. 2001) (citing Wash. Cty. v. Gunther, 452 U.S. 161, 170-71 (1981) and Ellis v. United Airlines, Inc., 73 F.3d 999, 1008 (10th Cir. 1996)), and Plaintiff's pay discrimination claim is likewise based upon a disparate treatment theory and not one of impact. As a result, statistics may be a piece of circumstantial proof bolstering an inference of discrimination, but to be useful, the statistics must clearly show actual differences in treatment, and their usefulness therefore "depends on all of the surrounding facts and circumstances." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977) (citing Hester v. S. Ry. Co., 497 F.2d 1374, 1379-1381 (5th Cir. 1974)); see also Watson v. Ft. Worth Bank & Tr., 487 U.S. 977, 994-95 (1988) ("Our [employment discrimination cases] . . . have consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation."). Here, Plaintiff's statistics simply repackage the acknowledged differences in pay between the Grade 12 SPM men and women—the fact of which essentially constitutes the prima facie case for pay discrimination—and concludes that regardless of how Defendant explains or justifies those differences on the basis of geography or time in grade, the differences themselves prove discriminatory pay practices. This turns the established framework on its head, and simply begs the question.

Furthermore, Plaintiff's statistical analysis is based upon an exceeding small sample size and includes only two women—Plaintiff and one other woman—who were in Grade 12 for a relatively short period of time. [See Doc. 99-6.] Thus, its conclusions regarding any deviation cannot provide any guarantee on reliability. The Court is not "obligated to assume that plaintiffs' statistical evidence is reliable," and "typical examples" of weak statistical evidence the Supreme Court has found worthy to catalogue as untrustworthy "include small or incomplete data sets and inadequate statistical techniques." Watson, 487 U.S. 977, 996-97 (citing Fudge v. Providence Fire Dept., 766 F.2d 650, 656-59 (1st Cir. 1985)). Plaintiff's argument involves both.³⁷

37 Even if the Court were to compare compensation ratios, as Plaintiff demands, her argument fails. Because she does not dispute that time in grade impacts the salary calculation, the appropriate comparisons are between her and the other employees' compensation ratios at the same point in their Grade 12 tenure. Since Plaintiff spent a relatively small amount of time in Grade 12, the only point to consider is the start. Taking those figures into account, Plaintiff had a compensation ratio of .96 at the time of her promotion to Grade 12. [Doc. 99-6.] The male employees, meanwhile, had the following ratios at the time they started in Grade 12: .88, .88, .99, .98, 1.03, .88, .88, .94, and .91. [Id.] Using her own framework, then, Plaintiff (as well as the other female Grade 12 employee with a ratio of .97) received a higher compensation ratio than two-thirds of the men at the appropriate comparison points.
And unlike the Bowen v. Manheim Remarketing Inc. case cited by Plaintiff, this is not an instance where Plaintiff's comparator was paid "near the midpoint of the compensation range," while she was paid "consistently . . . at the bottom of the range," and sometimes below the minimum. 882 F.3d 1358, 1361-63 (11th Cir. 2018). These employees were all paid within a substantially similar area in the compensation range when they moved into a Grade 12 position, and Plaintiff's salary was set higher within that range than a supermajority of her male comparators.

As a result, the Court will now compare Plaintiff's actual salary with those of her male, Grade 12 comparators, and is left with Defendant's unrebutted explanations for the disparities—geography (and the attendant market differences in labor and overhead costs) and time in grade. When Plaintiff was promoted to Grade 12, her starting salary ($139,173) was in fact higher than both³⁸ male comparators' starting salaries in their first years in Grade 12 (between $128,500³⁹ and $136,500) [see Doc. 86-12; Doc. 99-6]; and as noted, the small difference in pay when Plaintiff was in Grade 12 at the same time as her comparators in the same SAP is accounted for by the male comparators' additional time in grade—three to seven years. Defendant's evidence explains the disparities based upon factors other than sex, see 29 U.S.C. § 206(d)(1), and given that Plaintiff has left Defendant's explanation unrebutted outside of her statistical analysis, it establishes an affirmative defense. Likewise, Plaintiff has offered no pretext analysis whatsoever as it pertains to her pay discrimination claim under Title VII, and therefore Defendant's nondiscriminatory reasons stand unchallenged.

38 Because Plaintiff has not countered Defendant's evidence that SAP in fact accounts for significant pay disparities within grade, the Court considers only the two other Grade 12 SPM employees within the same SAP area as Plaintiff.

39 One of the two, Taylor, appears to have bounced between Grade 11 and Grade 12; in his first Grade 12 position, he had a starting salary of $128,500, and in his second, he had a starting salary of $132,255. [Doc. 86-28 at 3.]

For these reasons, summary judgment should be GRANTED with regard to Plaintiff's pay discrimination claims under the EPA and Title VII.

C. Discriminatory Discharge under Title VII

Plaintiff's remaining claim is for sex discrimination under Title VII in relation to her separation as part of the 2016 Restructuring. Because Plaintiff has presented no direct evidence of discrimination, she must prove discrimination through circumstantial evidence, invoking the McDonnell Douglas burden-shifting analysis already discussed. See Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997). As before, a plaintiff first has the burden of establishing a prima facie case of discrimination on the basis of sex. Chapman, 229 F.3d at 1024. If she establishes a prima facie case, the burden then shifts to the defendant to articulate legitimate, nondiscriminatory reasons for the adverse employment action. Id. If the defendant does so, the plaintiff is then given a final opportunity to show that the defendant's proffered nondiscriminatory reasons were merely a pretext for discriminatory intent. Id.

Because in reduction-of-force cases, the employer "seldom" seeks to replace the discharged employee, see Mauter v. Hardy Corp., 825 F.2d 1554, 1557 (11th Cir. 1987), a plaintiff establishes a prima facie case of discrimination by:

(1) showing that [she] was a member of a protected group and was adversely affect by an employment decision; (2) proving that [she] was qualified for [her] position or to assume another position at the time of the discharge; and (3) producing sufficient evidence from which a rational fact finder could conclude that h[er] employer intended to discriminate against h[er] in making the discharge decision.

Lawver v. Hillcrest Hospice, Inc., 300 F. App'x 768, 773 (11th Cir. 2008) (quoting Standard, 161 F.3d at 1331) (quotation marks omitted). There is no dispute that Plaintiff can establish the first two elements. As to the third, Plaintiff contends that discriminatory intent can be inferred from (1) the testimony of Plaintiff and other women in the SPM Group that the Group's culture was dominated by men and favored men for promotions; (2) Plaintiff not being paid as much as comparable men; and (3) Barlow and Webster's response to her October 2014 complaint about her pay—along with its reference to a possible perception of discrimination—, which, in Plaintiff's estimation, amounted to "Shut up and deal with it, or hit the road"; and (4) the fact that a greater percentage of Grade 11 and 12 women in the SPM Group were laid off in the 2016 Restructuring than men. [Doc. 95 at 13-21.] To establish intent under the third element, a plaintiff must proffer evidence that the defendant, in making the decision to include an employee in a reduction-in-force either (1) consciously refused to consider retaining the plaintiff because of her gender or (2) regarded gender as a negative factor in the retention consideration. See Padilla v. N. Broward Hosp. Dist., 270 Fed. App'x 966, 971 (11th Cir. 2008) (citing Allison v. Western Union Tel. Co., 680 F.2d 1318, 1321 (11th Cir. 1982)). The Court is not convinced Plaintiff's evidence does that here. As an initial matter, for the reasons identified in the previous section, Plaintiff's contention that she was paid less than comparable men fails. As to Plaintiff's complaint about her pay, it was addressed with a promotion and pay raise in the intervening period, and Plaintiff has not presented any evidence or argument tying her complaint in October 2014 to the decision to include her in the Restructuring nearly two years later.⁴⁰ And while Plaintiff offers circumstantial evidence of gender bias in the SPM Group based upon the general testimony⁴¹ of other women in the group, Plaintiff has not pointed to evidence linking that bias to Barlow or Webster's decision to include her in the Restructuring. See, e.g., Shedrick v. Dist. Bd. of Trustees of Miami-Dade Coll., 941 F. Supp. 2d 1348, 1371 (S.D. Fla. 2013) ("While Plaintiffs have produced a plethora of circumstantial evidence regarding racial bias among custodial-services officials, Plaintiffs have not pointed to any evidence that those individuals were involved in selecting Mitchell's position for elimination."). Finally, Plaintiff's argument that a higher percentage of Grade 11 and 12 women were laid off suffers from the same deficiencies as her pay analysis—small and incomplete sample sizes. Though the percentage of women laid off within that subset is higher than that of men if you compare the number of laid off employees to the underlying demographics that skew heavily male, the fact remains that there were an equal number (two each) of male and female Grade 12 employees separated from the SPM Group as part of the Restructuring. It is not clear that any inference of discriminatory motive can arise from this impressively small sample size.⁴²

40 If Plaintiff had evidence that the two were related, she would be asserting a Title VII retaliation claim here. Indeed, as Plaintiff admits, the October 2014 email was sent well in advance of the date Plaintiff identified in her EEOC charge and in her deposition as being when the alleged discrimination and retaliation against her began. (See DSMF ¶ 80.) Moreover, her characterization of Webster and Barlow's communications as inviting Plaintiff to accept discrimination or leave Defendant goes beyond reasonable.

41 The Court does not dismiss the testimony of Strickland, Tonetto, and Garza, but must recognize that the testimony elicited during their depositions and cited by Plaintiff largely speaks to their personal belief about environment in the Group and whether they were passed over for promotions due to their gender, but does not connect those beliefs to Barlow or Webster's motivations in including Plaintiff in the Restructuring. (See Garza Dep. at 30; Strickland Dep. at 31-38; Tonetto Dep. at 21, 41, 76.) Garza testified only generally about the SPM Group—that it was a "male-dominated organization," "perhaps because it was seen as more technical"—and specifically could not speak about Barlow's motivations except to say there "was an understanding" about his "particular [Mormon] background . . . on how women are treated," and so she could "only assume that [Plaintiff] was subject to some of that bias." (Garza Dep. at 30-32.) And while Strickland testified that she believed she (herself) had been passed over for promotions, she could not identify who received one and explained a nondiscriminatory reason for the other; she also stated that neither Barlow or Webster had ever made any disparaging or harassing remarks to her and that her belief that gender impacted Plaintiff was based upon the fact that Barlow gave single women more work than married men, as well as "third-hand stories other women had told me . . . [n]othing I had witnessed." (Strickland Dep. at 32-34, at 46-48.) Finally, like Strickland, Tonetto testified that a promotion she wanted and expected "didn't come through" and was given to man, but admits that she was still given one of the highest raises at the time, and, within a year, received a promotion. (Tonetto Dep. at 41-44, 75-76.)

42 Plaintiff very briefly cites the Eleventh Circuit decision in Quigg v. Thomas County School District, 814 F.3d 1227, 1235 (11th Cir. 2016), to suggest she could survive summary judgment by proceeding on a mixed-motive theory. [Doc. 95 at 13-14.] Plaintiff does not, however, flesh out this discussion in any way, certainly does not present any mixed-motive analysis for her discrimination claim, and instead, proceeds through the standard McDonnell Douglas framework. [Id. at 13-29.] Even if she did, for the reasons explained in relation to the causal element of her prima facie case, Plaintiff has not presented sufficient evidence for a jury to find by a preponderance of the evidence that her gender was a motivating factor in the decision to include her in the Restructuring. Williams v. Fla. Atl. Univ., 728 F. App'x 996, 1000 (11th Cir. 2018)

Assuming, arguendo, that Plaintiff could establish a prima facie case, Defendant has still presented her assessment score relative to other Grade 12 employees as a legitimate nondiscriminatory reason for her inclusion in the Restructuring. And unlike before, Plaintiff can no longer fall back on temporal proximity to protected conduct or otherwise link Barlow's changing attitude toward her to her gender to show pretext. While there is some evidence of inconsistency given the open question of whether Plaintiff was subjected to an assessment selection or position elimination (or both), Plaintiff does not present evidence that meets the proffered reasons head on to rebut them and show that discriminatory motive was the real reason (as opposed to, say, retaliation for making an ADA accommodation request). See Siddiqui v. NetJets Aviation, Inc., 773 F. App'x 562, 564 (11th Cir. 2019) (reiterating that a stated reason is not "pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason") (citation and quotation omitted), cert. denied, 140 S. Ct. 2507 (2020); see also Morgan, Fla., 477 F. App'x at 628. The only additional evidence Plaintiff provides at the pretext stage is the contention that Rosenthal, a man, replaced her or otherwise took up her job functions. [See Doc. 95 at 25.] However, that contention is based upon double hearsay that has been contradicted by Rosenthal's testimony (as well as that of Webster and Barlow), and is further undermined by the fact that Rosenthal's position was two grades below Plaintiff's at the time of her separation (and he remained at Grade 10 for approximately two years after that), that Rosenthal applied for it while he was being separated from his old position (when Plaintiff could have and did not), and that Rosenthal did not occupy it until after the Restructuring was completed. Based upon all this, Plaintiff has not offered evidence to show she was replaced by a man.

Accordingly, Plaintiff fails to set forth evidence that could lead a reasonable jury to conclude that Defendant's decision to include her in the Restructuring was motived by her gender or that Defendant's stated reason was pretext for discriminatory intent. As a result, summary judgment should be GRANTED with respect to her claim for discriminatory discharge under Title VII.

IV. SUMMARY

For the foregoing reasons, it is RECOMMENDED that Defendant's motion for summary judgment be DENIED as to Plaintiff's ADA retaliation claim, but GRANTED as to her remaining claims.

CONCLUSION

For the reasons discussed above, the undersigned RECOMMENDS that Plaintiff's Motion for Spoliation Sanctions [Doc. 89] be GRANTED IN PART AND DENIED IN PART and Defendant's Motion for Summary Judgment [Doc. 85] be GRANTED IN PART AND DENIED IN PART.

It is ORDERED that Plaintiff's and Defendant's motions for leave to file matters under seal are GRANTED. [Docs. 87, 91, 100, 105, 122.]

As there are no further matters pending before the undersigned magistrate judge, the Clerk is DIRECTED to terminate the reference.

IT IS SO ORDERED AND RECOMMENDED this 3rd day of August, 2020.

/s/_________

JOHN K. LARKINS III

United States Magistrate Judge