Huynh v. J.P. Morgan Chase Company

Full title: Toni Huynh, an individual, Plaintiff, v. J.P. Morgan Chase Company…

Court: United States District Court, D. Arizona

Date published: Jul 17, 2008

No. CIV 06-0001-PHX-RCB (D. Ariz. Jul. 17, 2008)

Opinion

No. CIV 06-0001-PHX-RCB.

July 17, 2008

ORDER

ROBERT BROOMFIELD, Senior District Judge

Plaintiff Toni Huynh, an Asian woman, alleges that she was discriminated against on the basis of her race and gender by her former employer, defendant J.P. Morgan Chase Company ("JPMC"), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 et seq. Pending before the court is a motion for summary judgment pursuant to Fed.R.Civ.P. 56 by defendant JPMC (doc. 43). Also pending are related motions by JPMC seeking to strike: (1) allegedly "inadmissible evidence" which plaintiff offers in response to this summary judgment motion (doc. 50); and (2) the affidavit of Cinyi¹ Wang, a former JPMC employee (doc. 48).²

1 There has been some confusion surrounding the spelling of Ms. Wang's name. Plaintiff refers to "Cin Yi[,]" Resp. (doc. 53) at 1, but the court opts for the spelling from Ms. Wang's own affidavit — "Cinyi." Plaintiff's Separate Statement of Facts ("PSOF") (doc. 47), exh. 7 (doc. 47-3) thereto (Wang Aff.) at 19.

2 Defendant seeks oral argument with respect to its summary judgment motion and its "motion to strike inadmissible evidence[,]" but not as to its motion to strike the Wang affidavit. Compare Docs. 43 at 1; and 50 at 1 with Doc. 48. Finding oral argument unnecessary, the court denies these requests.

Background

Plaintiff Huynh's discrimination claims arose in the context of a corporate merger between JPMC and Bank One, which occurred in late 2004. For now the court will limit its recitation of the facts to the general undisputed background of those claims. More detailed facts will be set forth herein as necessary to resolve the myriad of issues which these motions raise.

Plaintiff began working for JPMC's predecessor in June 1998. Sometime in 2004, she was promoted to the position of Vice President/Global Product Manager. In that position plaintiff was responsible for product and project management with respect to audio and video conferencing products. Plaintiff would research products and contract with outside vendors to install and support those products. Given her admitted lack of technical or engineering experience, plaintiff would "delegate" matters pertaining, for example, to "diagnostics." See Defendant's Separate Statement of Facts ("DSOF") (doc. 44), exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 47:18-20.

Because both JPMC and Bank One had departments which formed the same function as the Technology and Operations Group in which plaintiff worked prior to the merger, "[t]he newly formed JPMC merged th[o]se two departments by assessing the departments, job descriptions, officer titles, salary grade, job functions, and employees and then restructuring the groups to form one department." Id., exh. 6 (doc. 44-5) thereto (McClung Decl'n) at 30, ¶ 4. "The new [JPMC] department adopted the structure of the model previously used by Bank One." Id. Unlike the model under which plaintiff had previously worked, under the Bank One model, there was no "routine contract[ing] with [outside] vendors to perform installations or support — these functions were performed primarily" in-house by Bank One employees. DSOF (doc. 44) at 4, ¶ 15 (citations omitted).

According to Penne McClung, a JPMC Senior Vice President and the Managing Director of Global Voice, and Shannon Morton, a JPMC Vice President, "[a]s part of the merger, some employees were let go and other were reclassified or `re-mapped' into [other] positions[.]" Id., exh. 3 (doc. 44-4) thereto (Morton Decl'n) at 7, ¶ 9; and exh. 6 (doc. 44-5) thereto (McClung Decl'n) at 30, ¶ 5. As part of the reclassification, employees had to complete comprehensive "Employee Biography Forms" detailing such things as their educational background, professional experience, and a description of their "most recent job held and preferred role" within the newly merged company. Id. at 4, ¶ 16 (citation omitted).

"After the merger, Plaintiff was placed in the position of Network Engineer II³[.]" Id. at 4, ¶ 18 (citation omitted) (footnote added). She no longer held the title Vice President. Plaintiff was not alone in losing her title as part of the merger and subsequent reclassification. "Nine employees who reported to" Ms. Morton, "including [plaintiff], lost their `vice president' or `assistant vice president' titles as a result of the" merger.Id., exh. 3 (doc. 44-4) thereto (Morton Decl'n) at 11, ¶ 26; and exh. D thereto at 35.

3 Hereinafter all references to "Network Engineer" shall be read as including the designation "II."

Plaintiff was reclassified as Network Engineer because from JPMC's perspective, this was the position "most closely aligned with" plaintiff's role pre-merger, and "the available position that required the least technical and engineering skills." Id. at 4, ¶ 19 (citations omitted). As a Network Engineer, plaintiff's salary and benefits remained the same as when she had been a Vice President. Id. at 4, ¶ 20 (citation omitted). Because plaintiff's position prior to the merger did not exist in the JPMC merged organization, the only option, short of termination, was to reclassify her. Id. at 5, ¶ 22 (citations omitted).

In the spring of 2005 a presentation was made to plaintiff's department. Among the items discussed at that presentation were reclassification, training opportunities and the reporting structure were explained. Id., exh. 3 (doc. 44-4) thereto (Morton Decl'n) at 6, ¶ 28. Shortly after that presentation, plaintiff informed Ms. McClung, that plaintiff did not think that she had the qualifications to be a Network Engineer. Id., exh. 1 (44-3) thereto (Huynh Dep'n) at 208:10-14. Plaintiff voiced that concern to others at JPMC, including her immediate supervisor, Gerard Bauer. Id. at 208:15-209:6; and DSOF, exh. 5 (doc. 44-5) thereto (Bauer Decl'n) at 14, ¶ 13.

In an April 15, 2005, e-mail to Ms. McClung, plaintiff explained that she was "extremely stressed out" because she was being torn between two priority projects. DSOF (doc. 44), exh. 1 (doc. 44-3) thereto (Huynh Dep'n) at 185:9-186:25. This prompted a review of how plaintiff was spending her workdays. Id. at 7, ¶ 32 (citations omitted). Through its time tracking system, JPMC discovered that plaintiff "reported only 73 hours of work related to her audio and video conferencing activities." Id. at 7, ¶¶ 33 and 34 (citations omitted). The remainder of her reported time was devoted to "volunteer human resources activities that were not disclosed to her management team." Id. at 7, ¶ 32 (citations omitted). As a result of that e-mail, plaintiff believes that "her managers were unhappy with her[,]" and in fact, that e-mail is the reason "she received a rating of below satisfaction" for "technical competence on her April 29, 2005 performance evaluation." Id. at 7, ¶¶ 37-38 (citations omitted).

In the aftermath of the merger, there have been several reductions in force. Consequently, "[b]etween January 2005 and the end of December 2006, 85 employees (not including contractors) within [plaintiff's] Department were lost . . ., including [plaintiff] Huynh." Id., exh. 6 (doc. 44-5) thereto (McClung Decl'n) at 35-26, ¶ 50.

Discussion

I. "Motion to Strike Inadmissible Evidence"

Before turning to JPMC's summary judgment motion and before further development of the factual record, it is necessary to clarify the state of the record by addressing JPMC's "motion to strike inadmissible evidence." The court will then turn to JPMC's summary judgment motion. More narrowly, the court will determine whether plaintiff can establish a prima facie case of race/gender discrimination. Only if plaintiff satisfies that burden will the court consider JPMC's motion to strike the affidavit of Cinyi Wang. There is no need to address that motion to strike at the outset because plaintiff is offering Ms. Wang's affidavit solely on the issue of pretext. And, as will be seen, if plaintiff cannot make out a prima facie case, pretext does not become an issue.

A. Plaintiff's Affidavits

In opposing JPMC's summary judgment motion, plaintiff is relying, inter alia, upon her own affidavit (doc. 47-3), dated June 14, 2007 — more than a year afer her deposition. JPMC is moving to strike certain parts of that affidavit due to lack of foundation and lack of personal knowledge. JPMC further contends that parts of plaintiff's affidavit should be stricken as variously speculative, conclusory, irrelevant, inadmissible hearsay or because she is stating "an ultimate legal conclusion."See, e.g., id. at 7, ¶ 3. JPMC also objects to some of plaintiff's averments because supposedly they "are based upon opinion rather than fact." See, e.g., Mot. (doc. 50) at 6, ¶ 3. Lastly, JPMC objects to plaintiff's affidavit to the extent she references matters which are not included in her Charge of Discrimination which she filed with the Equal Employment Opportunity Commission ("EEOC") and the Arizona Attorney General's Office, Civil Rights Division on July 20, 2005 ("EEOC Charge"). This argument is more properly made and considered in the context of exhaustion. Hence, the court will defer consideration of this argument for the moment.

Plaintiff responded to these objections by filing a supplemental affidavit wherein she greatly expands upon each of the challenged portions of her original affidavit. See, e.g., Resp. (doc. 54) at 5-6, ¶ 2. Tellingly, plaintiff does not directly confront any of JPMC's objections to her original affidavit. Instead, without distinguishing between her original and her supplemental affidavits, plaintiff simply asserts that the "[a]verments in [h]er [a]ffidavit [a]re [a]dmissible[.]" Id. at 4.

JPMC counters that plaintiff's supplemental affidavit, filed almost two months after the filing of her response to JPMC's summary judgment motion, and without leave of court, is untimely. JPMC reasons that "[a] motion to strike inadmissible evidence does not re-open the briefing or record on a summary judgment motion[.]" Reply (doc. 57) at 3. Nor does such a motion "extend Plaintiff's time to submit the evidence that she claims mandates a trial of this matter." Id. JPMC thus maintains that the court should strike this supplemental affidavit in its "entirety." Id.

JPMC's position is well-taken. Plaintiff's filing of a supplemental affidavit well after the filing of her affidavit opposing summary judgment is a transparent attempt to circumvent Fed.R.Civ.P. 56 which the court will not allow. "Parties are not permitted to file late affidavits in support of their opposition to a motion for summary judgment without invoking Fed.R.Civ.Proc. 56(f) and indicating why they cannot timely file the required affidavits." Claar v. Burlington Northern R. Co., 29 F.3d 499, 504 (9^th Cir. 1994) (citation omitted). Plaintiff did not invoke Rule 56(f). Nor did she "suggest any reason for [her] failure to file timely, acceptable affidavits." See id. Indeed, it is hard to conceive of any such reason given that the supplemental affidavit is from plaintiff herself. This is not a situation, for example, of newly discovered evidence, or where plaintiff had to obtain an affidavit from someone outside of her control. Thus, the court grants JPMC's motion to the extent it is seeking to strike the supplemental affidavit of plaintiff. The court will not consider that affidavit in ruling on this summary judgment motion.

Turning to JPMC's challenges to plaintiff's initial affidavit, there is no need to separately address each one of those numerous challenges because many are unnecessary. The court is keenly aware that it "may only consider admissible evidence in ruling on a motion for summary judgment." Ballen v. City of Redmond, 466 F.3d 736, 745 (9th Cir. 2006) (citation omitted). The court is equally cognizant of the fact that the Ninth Circuit has long recognized that "[d]efects in evidence submitted in opposition to a motion for . . . summary judgment are waived `absent a motion to strike or other objection.'" FDIC v. N.H. Ins. Co., 953 F.2d 478, 484 (9th Cir. 1991) (quoting Scharf v. U.S. Att'y Gen., 597 F.2d 1240, 1243 (9th Cir. 1979)). By the same token, objections such as JPMC is making that "evidence . . . [as] irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself[.]" Burch v. Regents of University of California, 433 F.Supp.2d 1110, 1119 (E.D.Cal. 2006).

"A court can award summary judgment only when there is no genuine dispute of material fact. It cannot rely on irrelevant facts, and thus relevance objections are redundant." Id. Similarly, JPMC's objections that certain averments are speculative or constitute improper legal conclusions, are "superfluous in this context " because such averments "are not facts and likewise will not be considered on a motion for summary judgment." Id. (citation omitted). As the court accurately observed in Burch, "[i]nstead of objecting[,] parties should simply argue that the facts are not material." Id. In light of the foregoing, suffice it to say that the court will only take into account those parts of plaintiff's original affidavit which are properly considered on this summary judgment motion. The court will disregard the rest of that affidavit.

B. Plaintiff's Separate Statement of Facts

JPMC is seeking to strike 26 of the 61 paragraphs in the PSOF, as well as portions of three other paragraphs. Much like it did with respect to plaintiff's affidavit, this aspect of JPMC's motion to strike is based upon a host of claimed deficiencies, which include: (1) lack of foundation; (2) irrelevancy; (3) inadmissible hearsay; (4) argumentative; and (5) speculative. Once again, insofar as these objections are duplicative of the summary judgment standard, the court sees no need to expressly rule on each of them. Of course, to the extent that the PSOF contains conclusory or otherwise inadmissible "facts" under the summary judgment standard, the court will not consider any of those claimed "facts."

C. LRCiv 56.1(b)

LRCiv 56.1(b) requires a party opposing summary judgment such as plaintiff Huynh to provide, among other things:

a statement, . . ., setting forth . . . for each paragraph of the moving party's separate statement of facts, a correspondingly numbered paragraph indicating whether the party disputes the statement of fact set forth in that paragraph and a reference to the specific admissible portion of the record supporting the party's position if the fact is disputed[.]

LRCiv 56.1(b)(1). That Rule further provides that "[e]ach numbered paragraph of the statement of facts set forth in the moving party's separate statement of facts shall, unless otherwise ordered, be deemed admitted for purposes of the motion for summary judgment if not specifically controverted by a correspondingly numbered paragraph in the opposing party's separate statement of facts." Id. (emphasis added).

Plaintiff Huynh did not comply with that Rule. Thus, the court could deem admitted JPMC's entire 128 paragraph Statement of Facts. However, given the phrase, "unless otherwise ordered," the court finds that it "has the discretion, but is not required, to deem the uncontroverted facts admitted." See Baker v. D.A.R.A. II, Inc., 2008 WL 80350, at *3 (D.Ariz. 2008). Even without a specific statement of controverting facts from plaintiff, for the most part, the court is able to discern the disputed facts. Where it could not easily do so, however, the court did invoke LRCiv. 56.1(b)(1) and deem those facts admitted. Proceeding in this way is consistent with the well accepted view that "a district court does not have a duty to search for evidence that would create a factual dispute." See Bias v. Moynihan, 508 F.3d 1212, 1219 (9^th Cir. 2007) (citing Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9^th Cir. 2001) (holding that it would be "unfair" to the district court to require it "to search the entire record" if a party fails to "disclose where in the record the evidence for [the factual claims] can be found")).

II. Title VII Discrimination Claims

A. Summary Judgment Standards

Pursuant to Fed.R.Civ.P. 56(c), a party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." It is beyond dispute that "[t]he moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (citation omitted). "Once the moving party meets its initial burden, . . ., the burden shifts to the nonmoving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks and citations omitted). This "[e]vidence must be concrete and cannot rely on mere speculation, conjecture, or fantasy." Bates v. Clark County, 2006 WL 3308214, at * 2 (D.Nev. Nov. 13, 2006) (internal quotation marks and citation omitted). Similarly, a mere scintilla of evidence is not sufficient "to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some `significant probative evidence tending to support the complaint.'" Fazio v. City County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 249, 252). Thus, in opposing a summary judgment motion it is not enough to simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted).

By the same token though, when assessing the record to determine whether there is a "genuine issue for trial," the court must "view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in h[er] favor." Horphag, 475 F.3d at 1035 (citation omitted). "Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn." Yang v. Peoples Benefit Ins. Co., 2007 WL 1555749, at *7 (E.D.Cal. May 25, 2007) (citations omitted).

On a summary judgment motion, the court may not make credibility determinations; nor may it weigh conflicting evidence. See Anderson, 477 U.S. at 255. Thus, as framed by the Supreme Court, the ultimate question on a summary judgment motion is whether the evidence "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. In the employment discrimination context, the Ninth Circuit has stressed that "[a] plaintiff . . . need produce very little evidence in order to overcome an employer's motion for summary judgment."Team Electric, 520 F.3d at 1089 (internal quotation marks and citation omitted).

B. Disparate Treatment

Under Title VII it is "an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to h[er] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2(a)(1) (West 2003) (emphasis added). In her complaint plaintiff Huynh alleges two counts of discrimination — one based upon her race — Asian — and the other based upon her gender — female. Because these claims mirror each other, the court will jointly analyze them.

What is implicit in her complaint, that plaintiff is claiming disparate treatment, she makes explicit in her response. See Resp. (doc. 46) at 7. "A person suffers disparate treatment in h[er] employment when . . . she is singled out and treated less favorably than others similarly situated on account of a protected characteristic." Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9^th Cir. 2006) (internal quotation marks and citations omitted). "To prevail in a disparate treatment claim, a plaintiff must `prove that the employer acted with conscious intent to discriminate.'" Rutenschroer v. Starr Seigle Communications, Inc., 484 F.Supp.2d 1144, 1151 (D.Hawai'i 2006) (quoting Costa v. Desert Palace, Inc., 299 F.3d 838, 854 (9^th Cir. 2002) (other citation omitted).

Plaintiff's Title VII disparate treatment claims are subject to the by now familiar three step burden shifting analysis ofMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). "Under this framework, the plaintiff first must establish a prima facie case of discrimination[.]" Surrell v. California Waterservice Co., 518 F.3d 1097, 1105 (9^th Cir. 2008) (citation omitted). Alternatively, "[a] plaintiff may . . . proceed by simply producing direct or circumstantial evidence that a discriminatory reason more likely than not motivated the employer." Id. (internal quotation marks and citation omitted). In the present case, plaintiff declares that she "has direct evidence of discrimination[,]" but nowhere does she identify that evidence. Resp. (doc. 46) at 7. Instead, as did JPMC, she employs theMcDonnell Douglas framework.

Consequently, in its analysis the court, too, will apply that burden shifting framework.

C. Prima Facie Case

As the Ninth Circuit recently reiterated, to establish a prima facie case of disparate treatment, a plaintiff must show that:

(1) she belongs to a protected class;

(2) she was qualified for her position;

(3) she was subject to an adverse employment action; and

(4) similarly situated individuals outside her protected class were treated more favorably.

Davis. v. Team Electric Co., 520 F.3d 1080, 1089 (9^th Cir. 2008) (citation omitted). JPMC expressly concedes that plaintiff, an Asian female, is a member of a "protected class[.]" Mot. (doc. 43) at 9. JPMC does not, however, mention the second prima facie element — whether plaintiff is qualified. For purposes of this motion only, the court will assume that JPMC is conceding that plaintiff has met this element as well. In contrast, JPMC unequivocally asserts that plaintiff cannot establish a prima facie case of discrimination because she cannot satisfy the third element — that she was subjected to an adverse employment action. Nor, JPMC contends, can plaintiff show that there were other similarly situated individuals, outside her protected class, i.e. who were not female and Asian, who were treated more favorably than her. Accordingly, the court will confine its analysis of a prima facie case to these two challenged elements.

1. Scope of Claims

Before doing so, for two reasons, it is necessary to clarify the scope of plaintiff's claims. First, JPMC interprets plaintiff's response as attempting to impermissibly expand the scope of her recovery to include claims for her termination and for her unsuccessful attempts to transfer to other positions within JPMC. Second, plaintiff mentions retaliation and includes an EEOC Charge, filed on February 8, 2006, wherein she expressly states her "belie[f] that she was "retaliated against for filing a prior charge of discrimination with the [EEOC]." PSOF (doc. 47), exh. 9 (doc. 47-3) thereto at 24. It is therefore possible to construe plaintiff's response as seeking to recover for unlawful retaliation as well. The court will consider seriatim whether these additional claims are properly before it.

a. Termination and Transfer

JPMC's argument that plaintiff is impermissibly seeking to expand the scope of her claims is two-fold. First, JPMC asserts that plaintiff did not file an EEOC Charge pertaining to either her termination or her attempts at internal transfers. Second, JPMC argues that those "alleged events occurred on or before July 2006[,]" and thus are time barred. Resp. (doc. 49) at 2.

An extremely generous reading of plaintiff's response could lead to the conclusion, as did JPMC, that she is seeking to recover for her termination. See Resp. (doc. 46) at 6 (citations omitted). The same does not hold true, however, concerning alleged transfer denials.

As support for its view that plaintiff is trying to proceed on the theory that "she sought a transfer to other positions for which less qualified white male[s] . . . were hired[,]" JPMC cites to a portion of its letter in response to the February 8, 2006, EEOC Charge. See Reply (doc. 49) at 2 (citation omitted). What the quoted part of that letter actually states, though, is that during the 60 day notice period, plaintiff "may apply for other positions within JPMC." PSOF (doc. 47) at 12, ¶ 59 (internal quotation marks and citation omitted). There is no mention in the cited reference of plaintiff seeking a transfer "to other positions for which less qualified white male[s] . . . were hired." See id. Thus, although it is possible to construe plaintiff's Response as seeking to recover for her termination, that Response does not encompass a "transfer" claim. That, combined with the fact that the complaint does not allege any transfer denials compels a finding that transfers are beyond the scope of this action.

I. Exhaustion

As previously noted, JPMC is taking the position that plaintiff cannot pursue a termination claim because she did not file an EEOC Charge in that regard. Blurring the distinction between subject matter jurisdiction and the statute of limitations, JPMC does not explicitly mention exhaustion. Implicit in JPMC's argument, however, is that because plaintiff did not file such a charge, she has not exhausted her administrative remedies. Therefore, this court lacks subject matter jurisdiction over any termination claim.

"To establish subject matter jurisdiction over h[er] Title VII . . . claim[s], [plaintiff] must have exhausted h[er] administrative remedies by filing a timely charge with the EEOC."See Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9^th Cir. 2003) (footnote omitted). "Subject matter jurisdiction extends to all claims of discrimination that fall within the scope of the EEOC's actual investigation or an EEOC investigation that could reasonably be expected to grow out of the charge." Id. (footnote and citation omitted). "In determining whether the exhaustion requirement has been satisfied, the court may consider such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, and any locations at which discrimination is alleged to have occurred."Oshilaja v. Watterson, 2007 WL 2903029, at *5 (D.Ariz. 2007) (internal quotation marks and citations omitted). "When examining these factors, the Ninth Circuit deems `[t]he crucial element of a charge of discrimination' to be `the factual statement contained therein.'" Id. (quoting Freeman v. Oakland Unified School District, 291 F.3d 632, 636 (9^th Cir. 2002)).

In the present case, plaintiff filed her first EEOC Charge on July 20, 2005. DSOF, exh. 7 (doc. 44-5) thereto at 38; and PSOF, exh. 8 (doc. 47-3) thereto at 22. Termination is not mentioned anywhere in that Charge. Indeed, because the date of that Charge is July 20, 2005, and plaintiff's termination was not until almost a year later, on July 9, 2006, it would have been impossible for that termination to have been within the purview of the first EEOC Charge. Put differently, an EEOC investigation of plaintiff's first Charge could not "reasonably be expected" to include her termination. See Vasquez, 349 F.3d at 645 ("The EEOC could not have investigated that incident because it had not yet happened at the time the EEOC was conducting its investigation.") Thus, "[b]ecause [plaintiff] did not present the legal theory of unlawful [termination], and the operative facts regarding this part of h[er] claim were not related to the facts in the [first] EEOC charge, [s]he did not exhaust h[er] administrative remedies." Id. (footnote and citation omitted). Accordingly, to the extent she now is attempting to recover for unlawful termination, plaintiff Huynh did not exhaust her administrative remedies. The court is thus without subject matter jurisdiction to consider such a claim. See id. Given the lack of subject matter jurisdiction, there is no need to address JPMC's further contention that this termination claim is time barred.

For slightly different reasons, the court also lacks subject matter jurisdiction to consider plaintiff's claim that she was retaliated against for filing her first EEOC Charge. The complaint references only the July 20, 2005, EEOC Charge.⁴ Co. (doc. 1) at 5, ¶ 17. Significantly, in that Charge, in the box entitled "DISCRIMINATION BASED ON[,]" which instructs "Check appropriate box(es)[,]" plaintiff only checked the "RACE" and "SEX" boxes. DOSF (doc. 44), exh. 7 thereto (doc. 44-5) at 38. Despite the fact that there is a box specifically labeled, "RETALIATION," plaintiff did not check that box, although she did in her second EEOC Charge. Compare id. with PSOF (doc. 47), exh. 9 thereto (doc. 47-3) at 24. For that reason, among others, the court must decide whether this retaliation claim is reasonably related to plaintiff's first EEOC Charge.

4 Plaintiff did not even allege in a conclusory form that she exhausted her administrative remedies in terms of this particular EEOC Charge. Instead, she alleges that she filed an EEOC Charge on July 20, 2005, and that she "received a Dismissal and Notice of Right to Sue on or about October 7, 2005." See Co. (Doc. 1) at 5, ¶ 17. Plaintiff did not attach to her complaint either that Charge or the resultant Right to Sue Notice, which would have been preferable. Regardless, partially because in its answer JPMC explicitly "states that the EEOC issued a Dismissal and Right to Sue dated October 5, 2005[,]" Answer (doc. 9) at 3, ¶ 17, and because JPMC is not asserting failure to exhaust with respect to claims arising from the first EEOC charge, the court will overlook plaintiff's manner of pleading exhaustion in terms of the first EEOC Charge.

Two reasons compel a finding that plaintiff did not exhaust her administrative remedies with respect to retaliation, and hence the court does not have subject matter jurisdiction to consider this particular claim. First, as just noted, in the first EEOC Charge, which is the only one plaintiff mentions in her complaint, she did not check the box marked "RETALIATION[.]" Likewise, the factual statement in that first Charge does not mention retaliation; nor does it include any operative facts which would alert the EEOC that plaintiff is arguing retaliation in violation of Title VII. See Ong v. Cleland, 642 F.2d 316, 319 (9^th Cir. 1981) (an EEOC charge must alert the agency to the legal theory being pursued and the operative facts in relation thereto).

Second, based upon the statement of "PARTICULARS" in the second EEOC Charge, it appears that the alleged retaliation took the form of plaintiff receiving a less than favorable job performance rating. That rating was not issued until February 1, 2006, however — well after the July 20, 2005, filing date of the first EEOC Charge. See PSOF, exh. 9 (doc. 47-3) thereto at 24. Therefore, this purported retaliation "did not occur within the time frame of the events alleged in the [first] EEOC charge." See Vasquez, 349 F.3d at 645. As a result, "[a] reasonable investigation by the EEOC" of plaintiff Huynh's first Charge "would not have encompassed these allegedly retaliatory acts."See id. Similarly, as with plaintiff's termination claim, the EEOC could not have investigated this alleged retaliation when it was conducting its investigation of the first Charge because that "retaliation" had not yet occurred when the EEOC was conducting its first investigation. See id. For these reasons, the court also finds that plaintiff did not exhaust her administrative remedies insofar as she is claiming that JPMC retaliated against her for filing her first EEOC Charge. In sum, the court finds that plaintiff's claims for termination and retaliation arising from the filing of her first EEOC Charge are not properly before it due to her failure to exhaust. With that clarification, the court will next examine whether plaintiff has shown an adverse employment action — the third element of a prima facie disparate treatment claim.

2. "Adverse Employment Action"

In her complaint plaintiff alleges that she was "the only female and only minority amongst her immediate peers [who] was demoted" from a Vice President to a Network Engineer as a result of the merger. Co. (doc. 1) at 3, ¶ 12. Further, plaintiff alleges that she was not qualified to be a Network Engineer; and when she sought training for that position, it was denied, even though others were provided with that same training. See id. at 4, ¶ 13. Additionally, plaintiff claims that she was "denied . . . tangible employments benefits that were provided to her peers," such as a corporate credit card and tuition reimbursement. See id. at 6, ¶ 24. In a similar vein, plaintiff alleges that she "observed that her peers . . . were not required to pay for business travel expenses out of their own pocket[s][,]" yet she was. Id. at 4, ¶ 14. Plaintiff also alleges that she was "denied access to management[.]" Id. at 4, ¶ 15. JPMC contends that none of those acts "adversely effect[ed] the terms, conditions, or benefits of Plaintiff's employment." Mot. (doc. 43) at 10. Hence, plaintiff cannot make out a prima face case of disparate treatment.

Plaintiff counters that the acts enumerated above all easily fit with the Ninth Circuit's "expansive view of . . . `adverse employment action[s][.]'" Resp. (doc. 46) at 9 (citations omitted). Additionally, plaintiff recites a litany of other acts, most of which are not in her complaint, which she also believes constitute "adverse employment actions" because they were "changes in the terms, conditions and privileges of [her] employment" post-merger. See id. at 10-11. Therefore, from plaintiff's standpoint, she easily satisfies the "adverse employment action" element.

JPMC retorts that in arguing for an "expansive definition" of "adverse employment action," plaintiff is "confus[ing] the prerequisites of a prima facie case of retaliation with those [of] a prima facie case of discrimination." Reply (doc. 49) at 3 (footnote omitted). Comparatively, the definition of adverse employment action is broader under Title VII's anti-retaliation provision than it is under the substantive (status-based) anti-discrimination provision of that statute. See Burlington N. S.F.R. Co. v. White, 548 U.S. 53, 61 (2006) (internal quotation marks and citations omitted) (a plaintiff invoking Title VII's anti-retaliation provision "must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination"). Despite that, as will be seen, it does not necessarily follow, as JPMC urges, that none of JPMC's alleged conduct amounts to an adverse employment action.

In Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840 (9^th Cir. 2004), the plaintiff alleged discrimination in violation of Title VII based on his race and ethnicity; he did not rely on the anti-retaliation provision of that Act. Nonetheless, Ninth Circuit reiterated that it "define[s] `adverse employment action' broadly." Id. at 847 (citations omitted). "[A]n adverse employment action is one that `materially affect[s] the compensation, terms, conditions, or privileges of . . . employment." Team Electric, 520 F.3d at 1089 (internal quotation marks and citations omitted). The broad scope of that definition is evidenced by the fact that adverse employment actions can take many and varied forms. Representative examples, as identified by the Fonseca Court, are "where an employer's action negatively affects its employee's compensation." Fonseca, 374 F.3d at 847 (citations omitted). "A warning letter or negative review also can be considered an adverse employment action." Id. (citation omitted). Similarly, the Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), explained that an adverse, "tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 761 (citing cases). Keeping these principles firmly in mind, the court will separately consider whether any of the acts of which plaintiff complains can be deemed adverse employment actions.

a. "Demotion"

JPMC readily acknowledges that plaintiff's "job title and officer title changed as a result of [the] corporate merger." Mot. (doc. 43) at 10 (citation omitted). However, JPMC maintains that plaintiff's "salary, benefits, and job function remained essentially the same[,]" accordingly, her reclassification was not an adverse employment action. See id. (citations omitted). Plaintiff counters that because her "new position was a non-managerial, non-officer position for which [she] had no knowledge, experience, or training, and for which she was not qualified[,]" she has shown an "adverse employment action." Resp. (doc. 46) at 8-9 (citations omitted).

Based upon the record as presently constituted, there is no dispute that plaintiff's salary and benefits did not change, even after her title did. A JPMC Vice President expressly declared that after plaintiff's reclassification, her "salary and benefits remained the same." DSOF, exh. 3 (doc. 44-4) thereto (Morton Decl'n) at 4, ¶ 19. Plaintiff is silent as to whether or not her salary and benefits remained the same. Presumably then, plaintiff is not disputing this point. In any event, she has not "designate[d] specific facts showing that there is a genuine issue for trial" in terms of her compensation and benefits. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted) (emphasis added). Consequently, plaintiff cannot defeat summary judgment on this basis.

Plaintiff thus is left with her argument, albeit implicit, that due to changed job responsibilities, she has shown an adverse employment action because the "terms and conditions of her employment" were "materially affected" upon her reclassification. As noted above, JPMC asserts that there was no such change and that her "job function remained essentially the same[.]" Mot. (doc. 43) at 10 (citing DSOF (doc. 44) at ¶ 20). Significantly, the cited reference does not mention plaintiff's job functions. This is a critical omission.

JPMC, as the party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party fails to discharge that initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). JPMC has not met its initial burden in terms of whether plaintiff's job reclassification amounted to an adverse employment action. In contrast to salary and benefits, JPMC has not pointed to any record proof to support its view that plaintiff's job responsibilities "remained essentially the same" upon her reclassification. See Mot. (doc. 43) at 10 (citation omitted). This statement of counsel, unsupported by record proof, is not a sufficient basis upon which to grant summary judgment. See Smith v. Mack Trucks, 505 F.2d 1248, 1249 (9^th Cir. 1974) ("Statements of counsel, whether in legal memoranda or elsewhere, are not evidence and may not be relied on to either support or defeat a motion for summary judgment.")

"[R]eassignment with significantly different responsibilities" can constitute an adverse employment action. Tudor Delcey v. A-Dec, Inc., 2008 WL 123855, at *8 (D.Or. 2008) (quoting, inter alia, Burlington Indus., 524 U.S. at 761). Accordingly, because JPMC did not meet its initial burden of showing that plaintiff's job responsibilities "remained essentially the same," summary judgment is not proper as to this alleged form of adverse employment action. Further, at this juncture plaintiff can also rely upon the loss of her Vice President title to bolster her argument that her reclassification is tantamount to an adverse employment action.See Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7^th Cir. 1993) (emphasis added) ("A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation."); see also Acosta, 2006 WL 3499963, at *9 ("[a]lthough he apparently continued to receive the same salary[,]" plaintiff made a prima facie showing, defeating summary judgment, that his transfer was an adverse employment action where he was "demoted from his status as a trades helper"). On the other hand, as will soon become evident, there is merit to JPMC's argument that the remaining acts are not adverse employment actions for purposes of imposing Title VII liability.

b. Training

Plaintiff declares that she "requested technical training for her new position and was nearly entirely denied any training while her colleagues in the same position were consistently provided training." Resp. (doc. 46) at 10. This argument is deficient in two ways. First, it is wholly unsubstantiated. Second, the undisputed facts belie plaintiff's version of events.

Plaintiff acknowledges that on July 21, 2005, several months after being informed of her new job title, she was notified of six upcoming training sessions. DSOF (doc. 44) at 11, ¶ 63 (citing exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 258:19-259:8). Somewhat inconsistently, plaintiff testified that she did not recall attending five of those sessions, but that she "was trying to attend as many as [she] could." Id., exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 259:23-24. Plaintiff candidly offered that "sometimes" she had "scheduling conflicts" so she could not always attend these offered training sessions. Id. at 259:24-25.

Plaintiff also requested and received approval to attend another training session. DSOF (doc. 44) at 12, ¶ 65 (citing exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 286:6-287:20). She decided not to attend that particular session, however, because at the time she was not working on any projects using the technology which was to be the subject of that training.⁵ Id. (citing exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 286:12-287:4).

5 JPMC further contends that nine other training classes were "made available to Plaintiff." DSOF (doc. 44) at 12, ¶ 64 (citation omitted). The court is disregarding this contention, however, because the cited excerpt from plaintiff's deposition is not supportive.

Besides those formal training sessions, Huynh's immediate supervisor "attempt[ed] to assign [her] projects to . . . help her learn the engineering and technical aspects of her new role" as Network Engineer. Id., exh. 5 (doc. 44-5) thereto (Bauer Decl'n) at 16, ¶ 24. Plaintiff "did not perform th[o]se tasks" though and so did not avail herself of the learning opportunities which they presented. Id. at 16, ¶ 26. Consistent with the foregoing plaintiff readily agreed that she probably mentioned to her supervisor and to her mentor that she had "no desire to be a technician[,]" and that she had "no desire to learn to succeed as a technician or to acquire those skill sets[.]" Id., exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 159:12-17; and at 160:5-11. Indeed, plaintiff opined to her supervisor that it did not "make sense" financially for JPMC to "basically educate a nontechnical person [such as her] to become technical[.]" Id., exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 254:17-20.

Given these undisputed facts, plaintiff cannot survive summary judgment by relying upon the conclusory statement that she was "nearly entirely denied any training[.]" See Resp. (doc. 46) at 10. Plaintiff's response does not include any cites to the record to support this bald assertion. And while her SOF does include cites, close scrutiny of the cited portions of the record reveal that those cites do not corroborate that plaintiff was denied training. The thrust of the cited testimony is that plaintiff had to ask for training, not that she was denied training. See, e.g., DSOF, exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 290:19-23; and 217:15-17. Even construing the record cites in a light most favorable to plaintiff, she has not created a genuine issue of material fact in terms of whether she was denied training. Therefore, plaintiff cannot establish an adverse employment action based on her unsubstantiated allegation that she was denied training.

Furthermore, plaintiff has not pointed to any record evidence even hinting that "colleagues in the same position were consistently provided training" while she was not. See Resp. (doc. 46) at 10. The record cites in PSOF do not mention colleagues. This omission is significant. See Herr v. Airborne Freight Corp., 130 F.3d 359, 361 (8^th Cir. 1997) (plaintiff alleging, inter alia, inadequate training did not make out prima facie case of gender discrimination where she "presented no evidence that any other probationary driver received more training"). The court is thus left with the facts outlined above showing that plaintiff was offered training opportunities, many of which she did not avail herself. Plainly this does not amount to an adverse employment action, regardless of how broadly defined. See Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 979 (7^th Cir. 2004) ("insufficient evidence" that female supervisor employee was subjected to an adverse employment action due to inadequate training where although another supervisor "received eleven more hours of formal training" than did plaintiff, she "received at least three-to-four weeks of informal training[,]" and was "introduced" to an "experienced supervisor" with whom she could consult with "problems").

c. Corporate Credit Card Travel Expense Reimbursement

Plaintiff alleges that JPMC was "unwilling to provide her with a corporate credit card" while she "observed that her peers had" one. Co. (doc. 1) at 4, ¶ 14. This is not an "adverse employment action," JPMC contends, because in the first instance plaintiff was not denied a credit card. Rather, there was some delay, which plaintiff rectified, in having her card reinstated after the credit card company had deemed it inactive. Thus, it is JPMC's position that "[n]either the terms nor conditions of Plaintiff's employment were adversely affected by the delay in her receipt of a corporate credit card." Mot. (doc. 43) at 11. JPMC's position is well-taken.

In July 2005, when plaintiff filed her first EEOC charge, JPMC first became aware that she was having difficulty obtaining a corporate credit card. DSOF, exh. 3 (doc. 44-4) thereto (Morton Decl'n) at 10, ¶¶ 53-54. That difficulty "stemmed from the fact that [plaintiff] had previously been issued [such] a credit card that was cancelled due to non-use." Id. (doc. 44-4) at 15, ¶ 55;see also DSOF, exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 135: 12-18. Plaintiff resolved that difficulty by directly contacting the credit card company which reinstated her card. DSOF, exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 135:15-136:1. 25; see also id., exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 135:19-21.

In the meantime, when plaintiff's immediate supervisor learned of this, he "obtained permission to place [plaintiff's] business travel expenses on [his] corporate credit card so that [she] would not have to pay out of pocket for her business travel expenses." Id., exh. 5 (doc. 44-5) thereto (Bauer Decl'n) at 18, ¶ 36. According to plaintiff, still, she had to pay out-of-pocket for business travel expenses other than her airfare and accommodations. Id., exh. 1 (doc. 44-2) thereto (Huynh Dep'n) at 131:6-9. Plaintiff readily concedes, however, that she was reimbursed for those out-of-pocket expenses. Id. at 131:9-12.

Further, plaintiff is only speculating that her "peers" did not have to pay out-of-pocket for any of their business travel expenses. See Co. (doc. 1) at 4, ¶ 14. She has not, for example, identified even one "peer" who meets this criteria. "At this summary judgment stage, plaintiff cannot rely upon mere conclusory allegations in [her] complaint." Mann v. GTCR Golder Rauner, L.L.C., 483 F.Supp.2d 864, 869 n. 5 (D.Ariz. 2007) (citation omitted). Given these undisputed facts, the court finds that any difficulties which plaintiff may have encountered in terms of her corporate credit card did not, as a matter of law, "materially affect" the terms, conditions or privileges of her employment. It necessarily follows, then, that plaintiff has not shown an adverse employment action based upon her alleged denial of a corporate credit card.

d. Tuition Reimbursement

Similarly unavailing is plaintiff's assertion that she was denied tuition reimbursement, which she "observed that her peers" received, and this constitutes an adverse employment action. See Co. (doc. 1) at 4, ¶ 14; and at 6, ¶ 24. After learning of this supposed denial, JPMC investigated, discovering that "some of [plaintiff's] requests for tuition reimbursement had been forwarded to a manager who was no longer with JPMC, thus, the requests went unanswered." DSOF, exh. 3 (doc. 44-4) thereto (Morton Decl'n) at 15, ¶ 56. Evidently those requests went unanswered because the "new [JPMC] manager" was "not familiar with the [tuition reimbursement] approval processes." Id., exh. 5 (doc. 44-5) thereto (Bauer Decl'n) at 18, ¶ 35. Ultimately, in accordance with JPMC policy, plaintiff did receive tuition reimbursement however. Id., exh. 3 (doc. 44-4) thereto (Morton Decl'n) at 16, ¶ 57. Based upon this more fully developed record, plaintiff's unsubstantiated assertion that she was " denied . . . tuition reimbursement" simply is unfounded. See PSOF (doc. 47), exh. 2 (doc. 47-3) thereto (Huynh Aff.) at 3, ¶ 7 (emphasis added).

Furthermore, as with her credit card allegations, plaintiff has not come forth with any evidence to corroborate her view that "male colleagues were provided tuition reimbursement" while she was not. Id. at 5, ¶ 21 (citing exh 1. (doc. 47-2) thereto (Huynh Dep'n) at 243:20-244:6; and exh. 2 (doc. 47-3) thereto (Huynh Aff.) at 2, ¶ 7). The cited portions of the record do not support that assertion. Without record support, this is nothing more than counsel's unsupported statement, which cannot defeat an otherwise properly supported summary judgment motion. See Smith, 505 F.2d at 1249. Under these circumstances the court finds that to the extent plaintiff's tuition reimbursement was delayed, once again, it did not "materially affect" the terms, conditions or privileges of her employment. At most, this claimed delay was an administrative mistake which JPMC rectified once it became aware of it. See Tudor Delcey, 2008 WL 123855, at *9 (failure to implement a merit raise is a change in benefits, but it was not an adverse employment action given the evidence "show[ing] that it was an administrative mistake that was rectified once [plaintiff] complained to her manager").

e. Access to Senior Management

Apparently JPMC is moving for summary judgment based upon plaintiff's inability to show that a denial of access to management is an adverse employment action. Originally JPMC did not analyze that issue, however; instead, it simply listed that claimed denial in summarizing plaintiff's allegations. See Mot. (doc. 43) at 10. Plaintiff's response does nothing more than repeat the unsupported allegation that she "was denied access to senior management while her male colleagues were given direct access[.]" Resp. (doc. 46) at 10; and at 4. Given the manner in which the parties have presented this "denial of access" issue, the court is tempted to disregard altogether this adverse employment action theory. But, to be thorough, the court will briefly address this issue.

Obviously, JPMC did not meet its initial burden of showing an absence of genuine issue of material fact as to this "denial of access" issue. Nonetheless, there is merit to JPMC's contention in its reply that "[p]laintiff's vague allegations of exclusion are insufficient to create an issue of fact for trial." Reply (doc. 49) at 5. Again, plaintiff did not provide any cites to the record, much less a cite showing a genuine issue of material fact. As in James v. Booz-Allen Hamilton, Inc., 368 F.3d 371 (4^th Cir. 2004), plaintiff's claim that she was denied access to senior management "lacks specificity, and [s]he fails . . . to substantiate how th[at] alleged [denial], . . ., adversely affected h[er]." See id. at 377. Therefore, the court finds that this alleged denial of access to management cannot support a finding of an adverse employment action.

f. Miscellaneous Acts

Understandably, initially JPMC confined its adverse employment action argument to the conduct which plaintiff alleges in her first EEOC Charge and echoes in her complaint. When plaintiff attempted to defeat summary judgment by listing a host of other supposedly adverse employment actions, JPMC replied by explaining the numerous weaknesses in her contentions. It is unnecessary to address each of JPMC's numerous objections because whether framed in terms of being "told by management to keep her `mouth shut[,]'" or in terms of "not provid[ing] Plaintiff with a job description for her new position," plaintiff has not created a factual issue sufficient to overcome summary judgment as to any of these acts. Adopting JPMC's reasoning, the court finds that whether viewed individually or collectively, none of the acts which plaintiff found objectionable rise to the level of an adverse employment action. See Reply (doc. 49) at 5-8. Garity v. Potter, 2008 WL 872992 (D.Nev. 2008) is particularly instructive in this regard. Similar to plaintiff Huynh, among other things, the plaintiff in Garity alleged that she was "`berated' in front of her fellow employees, that her supervisor was rude to her, that she was deprived of receiving clear and logical instructions" and that she was put in "no-win situations[.]" Id. at *3. Based upon those allegations the court found that "[w]hile Plaintiff's . . . subjective experience [w]as . . . painful and difficult, allegations of unfriendly or rude behavior and/or that she experienced a non-ideal work environment [we]re insufficient to establish a prima facie case of racial discrimination under Title VII." Id. at *4 (citing, inter alia, Baqir v. Principi, 434 F.3d 733, 747 (4^th Cir. 2006)). The same is true here. The conduct which plaintiff Huynh may find subjectively offensive does not suffice to show an adverse employment action. Further, plaintiff is overlooking the fact that to come within the ambit of an adverse employment action, the conduct must "materially affect" such things as the terms and conditions of employment. It is not enough that the challenged actions merely affect employment in some relatively inconsequential way. Without in any way intending to diminish plaintiff's subjective experience, the court agrees with the astute observation of several circuit courts that "not everything that makes an employee unhappy is an actionable adverse action."See, e.g., Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 868 (8^th Cir. 2008) (internal quotation marks and citation omitted); Smart v. Ball State University, 89 F.3d 437, 441 (7^th Cir. 1996).

In sum, although the definition of an adverse employment action is relatively broad, there must be some outer limits. Here, with one exception, plaintiff has exceeded the scope of what can be considered an adverse employment action. That exception is plaintiff's reclassification from a Vice President to a Network Engineer. Because plaintiff is able to defeat summary judgment as to this one form of adverse employment action (reclassification), the court will shift its focus to whether plaintiff can show that similarly situated individuals outside her protected class were treated more favorably. If she cannot, as JPMC maintains, then JPMC would be entitled to summary judgment.

3. Similarly Situated Individuals

Even if plaintiff is able to show, as she has, at least one adverse employment action, JPMC contends that she cannot make out a prima facie case because she "cannot identify similarly situated individuals who received more favorable treatment." Mot. (doc. 43) at 12 (emphasis omitted). To satisfy this element, plaintiff Huynh must prove that employees "`with qualifications similar to [hers] were treated more favorably'" than she was.See Oshilaja, 2007 WL 2903029, at *11 (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9<sup>th</sup> Cir. 1998)). This showing "does not require that the employees be identically situated."Bowden v. Potter, 308 F.Supp.2d 1108, 1117 (N.D.Cal. 2004) (emphasis in original). Rather, what must be shown is that an employee is "`similarly situated in all material respects — not in all respects.'" Id. at 1116 (quoting McGuinness v. Lincoln Hall 263 F.3d 34, 53 (2^d Cir. 2000)) (emphasis in original). Thus, despite JPMC's contrary assertion, "[t]he employees need not necessarily have the same supervisor, be subject to the same standards, and engage in the same conduct." Id. at 1117. "The relevance of such factors depends on the circumstances and nature of the case." Id. As the foregoing makes clear, "[t]he issue of similarly situated status is . . . fact specific and defies a mechanical or formulaic approach." Id.

JPMC notes that in her deposition plaintiff identified three, sometimes four, individuals whom she claims were similarly situated, but were treated more favorably then she. Mot. (doc. 43) at 12 (citing DSOF (doc. 44) at ¶¶ 3 and 4 (citations omitted)). In opposing JPMC's motion, however, plaintiff explicitly asserts that "[i]n all material respects," she was only "similarly situated to Peterson and Hillman [two of her colleagues] prior to the [m]erger[.]" Resp. (doc. 46) at 12. Accordingly, the court will confine its similarly situated inquiry to those two individuals.

JPMC maintains that prior to the merger neither Peterson nor Hillman were similarly situated to plaintiff because they had skills, knowledge, training, and experience which plaintiff did not have. It is those differences, JPMC maintains, which resulted in Peterson and Hillman retaining their Vice President titles after the merger while plaintiff did not.

As noted earlier, one result of the merger was that the department in which plaintiff had been working pre-merger was subsumed in another department. Ms. McClung had an integral role in the reclassification of personnel which took place as part of that department merger. She "had final approval of job titles and assignments and [she] had input over who was assigned to various positions and roles within [her] department." DSOF, exh. 6 (doc. 44-5) thereto (McClung Decl'n) at 30, ¶ 6. Given those responsibilities, Ms. McClung had "personal knowledge of the reasons why" Ms. Peterson and Mr. Hillman, among others, "were assigned to the job titles and functions which they were . . . following the merger." Id. at 32, ¶ 17.

Like plaintiff, Ms. Peterson was "a project/product manager" prior to the merger; but after the merger, unlike plaintiff, she "kept her former title of Vice President[.]" Id. at 33, ¶¶ 34 and 35. From Ms. McClung's perspective, "[t]he employees in [her] department are required to have technical and engineering knowledge[.]" Id. at 30, ¶ 10. Someone who does not "know how products work, how they can be supported, or how they are installed[,]" is not, in Ms. McClung's opinion, "qualified to make decisions about what equipment and products are best for the organization." Id. at 31, ¶ 10.

Elaborating upon Ms. Peterson's technical knowledge, Ms. McClung explained that unlike plaintiff, prior to the merger Ms. Peterson took "it upon herself to learn the technical and engineering aspects of audio and video equipment." Id. at 34, ¶ 36. Therefore, although both Ms. Peterson and plaintiff worked with vendors prior to the merger, in contrast to plaintiff, Ms. Peterson actually "knew how the products worked." See id. Ms. Peterson's knowledge of "technical fundamentals of the equipment" became evident to Ms. McClung from conversations she had with Ms. Peterson. See id. at 34, ¶ 37. In sharp contrast, plaintiff "made it very clear to" Ms. McClung that plaintiff "was not familiar with the technical or engineering aspects of the equipment that she worked with in her . . . role" prior to the merger. Id. at 30, ¶ 9.

Ms. McClung's assessment of Ms. Peterson technical knowledge was confirmed by speaking with an outside vendor's employees who "spoke highly of Peterson and [her] knowledge and skills." Id. at 34, ¶ 37. Ms. Peterson had what Ms. McClung describes as "strong technical skills and she was rated a higher level engineer than [plaintiff] because Peterson had multiple levels of technical competency." Id. at 34, ¶ 38. Therefore, because "technical and engineering skills are very important within the Global Voice Department," Ms. McClung explains that Ms. Peterson "was given a job tile that carried with it the officer title of Vice President." Id. Succinctly put, as the foregoing shows, Ms. Peterson retained her Vice President title because she had technical knowledge which plaintiff did not.

Likewise, according to Ms. McClung, Mr. Hillman, who works in the United Kingdom, "was given the title of Infrastructure Director, which had an officer title of Vice President, because of his experience and superior technical skills[.]" Id. at 35, ¶ 46. Ms. McClung describes Mr. Hillman as a "highly technical individual[.]" Id. at 34, ¶ 41. Indeed, Mr. Hillman "is regarded as a driving force in the technology industry, especially within the Polycom users group in the United States and in Europe, the Middle East, and Africa." Id. This can be seen from the fact that Hillman "is a former President and current Vice President of a Polycom User's Group in the United Kingdom." Id. at 35, ¶ 43. Additionally, Ms. McClung had "heard good feedback about Hillman from his peers, and he was known at the executive level" of the JPMC entity as it existed prior to the merger." Id. at 35, ¶ 44. Plaintiff had none of these attributes. She was "not well-known" to those executives, "and she [wa]s not a well-known figure within the Polycom industry." Id. at 35, ¶ 45. Nor, as previously discussed, did plaintiff have technical experience, much less being considered "a driving force in the technology industry[.]"See id. at 34, ¶ 41.

Despite the foregoing, plaintiff steadfastly maintains that she, Ms. Peterson and Mr. Hillman were similarly situated prior to the merger. From plaintiff's viewpoint, those similarities are as follows. She, Ms. Peterson, and Mr. Hillman all had the same title, Vice President, and were all "Officers of the Company[.]" Resp. (doc. 46) at 12. Purportedly all three also "managed other employees;" and "were paid base salaries plus year-ending bonuses[.]" Id. Other similarities, according to plaintiff, are that "all three oversaw Defendants' audio — and videoconferencing functions throughout the world; and all . . . had been promoted to their respective Vice President positions based on prior employment with the Defendant." Id.

There are several flaws in plaintiff's argument. The first and perhaps most fundamental flaw is that plaintiff did not provide cites to the record to support these claimed similarities. This "absence of cites to the record is fatal to plaintiff['s] opposition." See Mann, 483 F.Supp.2d at 872-873. "At the very least, as the party opposing summary judgment, plaintiff must `designate specific facts showing that there is a genuine issue for trial.'" Id. at 873 (quoting Celotex, 477 U.S. at 324, 106 S.Ct. 2548, 91 L.Ed.2d 265) (emphasis added by Mann court). "Plaintiff cannot defeat this summary judgment motion by relying upon blanket, unsupported assertions or declarations in their opposing memorandum of law." Id. (citing Mack Trucks, 505 F.2d at 1249 ("[A] [l]egal memorand[um] . . ., in the summary-judgment context, [is] not evidence, and do[es] not create issues of fact capable of defeating an otherwise valid motion for summary judgment.")) "That is so in part because `the arguments and statements of counsel are not evidence and do not create issues of material fact capable of defeating an otherwise valid motion for summary judgment.'" Id. (quoting Barcamerica Intern. v. Tyfield Importers, Inc., 289 F.3d 589, 593 n. 4 (9^th Cir. 2002) (internal quotation marks and citation omitted)). Moreover, it is the nonmoving party's obligation, not the court's, "`to identify with reasonable particularity the evidence that precludes summary judgment.'" Mann v. GTCR Golder Rauner, L.L.C., 483 F.Supp.2d 884, 891 (D.Ariz. 2007) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9^th Cir. 1996)). Plaintiff Huynh has not fulfilled that obligation.

Assuming arguendo that the record evidence supports these claimed similarities, nevertheless, plaintiff cannot defeat JPMC's motion because she has not made out a prima facie case of disparate treatment. JPMC has submitted undisputed evidence that Hillman and Peterson were not similarly situated to plaintiff Huynh in that they both had technical skills, knowledge and experience which she did not. Plaintiff did not even attempt to show that she was similarly situated in that critical "material respect." Indeed, plaintiff would be hard pressed to do so given her stance all along that she was not qualified for her reclassified position as a Network Engineer because of her lack of technical and engineering experience.

Another flaw in plaintiff's opposition is that she has not shown that either Peterson or Hillman were "outside her protected class," i.e. Asian, in terms of race. According to JPMC, Ms. Peterson is a "United States immigrant[,]" but it is impossible to discern her race from that statement. DSOF (doc. 44), exh. 6 (doc. 44-5) thereto (McClung Decl'n) at 31, ¶ 15. Admittedly, neither Hillman nor Peterson are Asian surnames, but that is not necessarily determinative of their race. They could be adoptees; and if so, they could be of Asian race, but have non-Asian surnames. They also could be Asian and have taken non-Asian surnames through marriage. Plainly the court is speculating, but that is the point. Because the record is silent as to the race of Hillman and Peterson, the court cannot engage in any meaningful analysis in this regard. See Rutenschroer v. Starr Seigle Communications, Inc., 484 F.Supp.2d 1144, 1156 (D.Hawai'i 2006) (court could not "compare the treatment of similarly-situated non-black employees" to African-American plaintiff because she did not "present . . . specific evidence regarding the race or color of the other employees"). What is more, the fact that Ms. Hillman, who retained her Vice President title, is a female severely undermines plaintiff's assertion that plaintiff was reclassified to a non-Vice President position because of her gender.

The court is cognizant that "whether two employees are similarly situated is ordinarily a question of fact." Beck v. United Food and Commercial Workers Union 506 F.3d 874, 885 n. 5 (9^th Cir. 2007) (citations omitted). Where, as here, however, plaintiff has not come forth with any evidence that similarly situated individuals, i.e. persons with a similar lack of technical knowledge, skills and experience, were treated more favorably than her, plaintiff cannot meet her minimum burden of establishing a prima facie case of disparate treatment. See Leong v. Potter, 347 F.3d 1117, 1124 (9^th Cir. 2003) (plaintiff failed to establish prima facie case of Title VII discrimination because he did not provide evidence that similarly situated individuals were treated more favorably).

Until now the court has deliberately focused on plaintiff's primary argument that she was similarly situated to Hillman and Peterson prior to the merger, yet she was treated less favorably to them after the merger. Plaintiff is also suggesting, though, that after the merger she was treated less favorably than similarly situated individuals. This argument fails as well. Plaintiff states that JPMC "has conspicuously not stated . . . that Peterson and Hillman were denied corporate credit cards, or tuition reimbursement, or any other indicia of the Vice President and officer positions[.]" Resp. (doc. 46) at 13). Plaintiff has it backwards. It is her burden to show that after the merger there were other similarly situated individuals, i.e. those in the Network Engineer position, or who were otherwise similarly situated to her in all material respects, who received those benefits. Clearly after the merger neither Hillman nor Peterson were similarly situated to plaintiff in that they held different positions than did plaintiff, and in the post-merger hierarchy, they were at a managerial level, whereas plaintiff was not. See Vasqez, 349 F.3d at 641 (footnote omitted) ("Employees in supervisory positions are generally deemed not to be similarly situated to lower level employees.") Hence, whether or not Hillman and Peterson, who clearly were not similarly situated to plaintiff after the merger, received benefits such as tuition reimbursement, is irrelevant.

To be sure, "[t]he requisite degree of proof necessary to establish a prima facie case for Title VII . . . claims on summary judgment is minimal[.]" Team Electric, 520 F.3d at 1089 (internal quotation marks and citation omitted). Nonetheless, at the end of the day plaintiff cannot overcome JPMC's summary judgment motion on the similarly situated element because the record is devoid of any evidence that non-Asian, male employees with a similar lack of technical experience received more favorable treatment than did plaintiff. See Lyons v. England, 307 F.3d 1092, 1113 (9^th Cir. 2002) ("A plaintiff's failure to offer evidence establishing a necessary element of his prima facie case will ordinarily be fatal to his claim.") What is more, as will be seen, even if plaintiff established a prima facie case, she is unable to rebut JPMC's legitimate, non-discriminatory reason for not placing her in a Vice President position post-merger.

D. Legitimate, Nondiscriminatory Reason

Once the plaintiff establishes a prima facie case, "the burden . . . shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory . . . conduct." Surrell, 518 F.3d at 1106 (citation omitted). This burden is one of production, not persuasion; it involves no credibility assessment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (citation omitted).

Having found that plaintiff's reclassification is the only viable adverse employment action here, the court's inquiry is narrow — can JPMC articulate a legitimate, non-discriminatory reason for reclassifying her from a Vice President to a Network Engineer. See Chuang v. University of California Davis, 225 F.3d 1115, 1126 (9^th Cir. 2000) (citations omitted) (emphasis added) ("Because the [plaintiffs] established a prima facie case for the first two claims, the burden of production shifts to [defendant] to articulate a nondiscriminatory reason for each adverse employment action.") As fully detailed in the declarations of several JPMC employees, JPMC readily satisfies this burden. Namely, plaintiff's former position did not exist in the newly merged corporation; so, she was reclassified to the position which most closely aligned with her former job responsibilities — that of Network Engineer. DSOF, exh. 3 (doc. 44-4) thereto (Morton Decl'n) at 2-4, ¶¶ 8-18; exh. 5 (doc. 44-5) thereto (Bauer Decl'n) at 1, ¶ 4; at 2, ¶¶ 5; 10-11; and at 3, ¶ 14; exh. 6 (doc. 44-5) thereto (McClung Decl'n) at 30-31, ¶¶ 4-10; and at 35, ¶¶ 48-49. Indeed, the alternative to reclassifying plaintiff was terminating her. Id., exh. 3 (doc. 44-4) thereto (Morton Decl'n) at 9, ¶ 16; exh. 6 thereto (doc. 44-5) (McClung Decl'n) at 35, ¶ 49.

An additional reason for plaintiff's reclassification was her "lack of technical training and experience[.]" Id., exh. 3 (doc. 44-4) thereto (Morton Decl'n) at 9, ¶ 17. Ms. Morton, who was part of a team of managers who assessed plaintiff's "Biography Form and the job requirements of the available positions" within the merged organization, opines that "it would not have been in the best interest of the firm to assign [plaintiff] the job of managing technical engineers when she did not personally have technical or engineering experience." Id. at 8, ¶ 14; and at 9, ¶ 17. Not only did plaintiff lack the requisite technical background, but she also lacked the necessary management skills. Ms. Morton explains that although in her "Biography Form, [plaintiff] indicated that she had over 10 years of management experience[,] [u]pon closer examination, [plaintiff] had not even been in the workforce for 10 years at that time[.]" Id. at 9, ¶ 18. Her "actual `management' experience was limited to less than 5 years, and she primarily managed outside vendors, not employees." Id. Based upon the foregoing, JPMC has met its burden of production.

E. Pretext

"If the employer articulates a legitimate reason for its action," as JPMC has, "the presumption of discrimination drops out of the picture, and the plaintiff may defeat summary judgment by satisfying the usual standard of proof required . . . under Fed.R.Civ.P. 56(c)." See Surrell, 518 F.3d at 1106 (internal quotation marks and citations omitted). A plaintiff proceeding on a disparate treatment theory satisfies that burden by showing "that the reason is pretextual either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Team Electric, 520 F.3d at 1089 (internal quotation marks and citations omitted) (emphasis added). As to the latter, an "employer's proffered explanation is `unworthy of credence because it is internally inconsistent or otherwise not believable[.]" Noyes v. Kelly Services, 488 F.3d 1163, 1170 (9^th Cir. 2007) (internal quotation marks and citations omitted).

This Circuit has not yet "clearly resolved" the issue of whether a plaintiff "must offer `specific' and `substantial' circumstantial evidence of pretext, or whether a lesser amount should suffice."⁶ Team Electric, 520 F.3d at 1091 (footnote omitted). What is clear, however, is that a plaintiff "must prove by a preponderance of the evidence that the reason asserted by the defendants is a mere pretext." Community House, Inc. v. City of Boise, 490 F.3d 1041, 1053 (9^th Cir. 2007) (citation omitted) (emphasis added).

6 Compare Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1030 (9^th Cir. 2006) ("[I]n the context of summary judgment, Title VII does not require a disparate treatment plaintiff relying on circumstantial evidence to produce more, or better, evidence than a plaintiff who relies on direct evidence.") with Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1038 (9^th Cir. 2005) (circumstantial evidence of discriminatory motive must "be both specific and substantial").

As part of plaintiff's burden, JPMC indicates that she must also show by a preponderance of the evidence that its reasons for reclassifying her "are not true." Mot. (doc. 43) at 16 (citation omitted). The Ninth Circuit in Noyes expressly rejected this "enhanced burden to show pretext[,]" however. Noyes, 488 F.3d at 1170. In so doing, it "reiterate[d] that at the summary judgment stage, a plaintiff may raise a genuine issue of material fact as to pretext via (1) direct evidence of the employer's discriminatory motive or (2) indirect evidence that undermines the credibility of the employer's articulated reasons." Id. at 1170-71 (citations omitted). Plaintiff Huynh has done neither.

In the absence of any direct evidence of racial or gender animus, plaintiff is attempting to establish pretext indirectly. Many of the incidents which plaintiff believes were adverse employment actions also, from her viewpoint, are indirect evidence of pretext. Plaintiff harkens back to her belief that she (1) was placed in a position for which she was not qualified; (2) not given a job description; (3) not trained; (4) told to "keep her mouth shut[;]" and (4) "`black list[ed]'" when she complain[ed][.]" Resp. (doc. 46) at 15. After listing those purported actions by JPMC, plaintiff declares that its "actions are internally inconsistent with its proffered explanation and unworthy of credence." Id. at 16 (internal quotation marks and citation omitted).

Assuming arguendo that all of the foregoing is properly considered on this motion, nevertheless, plaintiff utterly fails to explain how this proof is "internally inconsistent and unworthy of credence." See id. Plaintiff cannot meet her burden of showing "mere pretext" simply by reciting the phrase "internally inconsistent and unworthy of credence." She must do more. Plaintiff must demonstrate how that conduct is "internally inconsistent" with JPMC's proffered reasons for reclassifying her, or why it is "unworthy of credence." Plaintiff has not done that. Indeed, plaintiff would be hard pressed to argue that JPMC's reasons for reclassifying her are "unworthy of credence" given that she did not depose any of the JPMC employees whose declarations are part of this record. Without some explanation from plaintiff, the court is at a loss to see how the listed acts create a genuine issue of fact as to pretext.

Furthermore, plaintiff's own subjective belief that she was unqualified to be a Network Engineer does not create a factual issue as to pretext. See Bradley v. Harcourt, Brace Co., 104 F.3d 267, 270 (9^th Cir. 1996) ("[A]n employee's subject personal judgments of her competence alone do not raise a genuine issue of material fact."). This is all the more so given the ample undisputed evidence discussed earlier showing that plaintiff was reclassified as a Network Engineer because that position was most closely aligned with her job junctions prior to the merger.

Plaintiff seems to suggest that the "revo[cation]" of her "credit card privileges, which were enjoyed by [her] peers in her new position," and the "further revo[cation] [of] her tuition reimbursement" also were "internally inconsistent" with JPMC's reasons for reclassifying her. See id. at 16 (citation omitted). Again, the court fails to see the asserted "internal inconsistency."

In any event, this is a blatant misstatement of the facts. As previously discussed, plaintiff's credit card was not revoked; it was placed on inactive status due to lack of use. No reasonable trier of fact could draw an inference of discriminatory motive on this record as it pertains to plaintiff's access to a corporate credit card. Additionally, plaintiff has not shown that her "peers" had a credit card while she did not. This lack of proof further undermines plaintiff's theory that she was discriminated against on the basis of her race and gender.

Further, on the record as developed there is absolutely no basis for plaintiff's statement that her tuition was revoked. Rather, as already explained, plaintiff's request for tuition reimbursement was not timely processed due to the new manager's unfamiliarity with the approval process. As with the corporate credit card, no reasonable inference of discriminatory motive can be drawn from this record with respect to tuition reimbursement.

While "the burden on [a] plaintiff to raise a triable issue of fact as to pretext is hardly an onerous one[,]" plaintiff Huynh has not met even that relatively minimal burden. See Noyes, 488 F.3d at 1170 (internal quotation marks and citation omitted). She has pointed to nothing indicating that her reclassification improperly stems from her race or her gender, as opposed to her lack of qualifications. The inferential leap which plaintiff urges this court to make is simply too great. At best, plaintiff is left with her own "uncorroborated and self-serving" statements as to JPMC's discriminatory motive; "without more," those statements "will not create a genuine issue of material fact precluding summary judgment." See Mann, 483 F.Supp.2d at 890. Simply put, plaintiff has not satisfied her ultimate burden of persuasion; no reasonable trier of fact could draw an inference of racial or gender discrimination on this record.

III. Motion to Strike Affidavit of Cinyi Wang

In a last ditch effort to create a fact issue regarding pretext, plaintiff is attempting to rely upon what is colloquially referred to as "me too" evidence. More specifically, plaintiff is relying upon the affidavit of Cinyi Wang another Asian female who prior to the merger also held a Vice President position. Ms. Wang, in language strikingly similar to that in plaintiff's affidavit, avers that post-merger she was "stripped" of her Vice President title; not provided with a job description for her new position; "received no direction from [her] manager about her job duties and responsibilities, and was not provided . . . performance reviews that were provided to other employees[.]" PSOF (doc. 47), exh. 7 (doc. 47-3) thereto (Wang Aff.) at 20, ¶ 7. Ms. Wang further avers that her training requests were denied, and that she sought intra-company transfers for positions where she believed her "skills could be better utilized[,]" but was informed "that there were no other positions available for [her] at [JPMC]." Id. at 20, ¶ 8. Ms. Wang was terminated on August 1, 2005. Id. at 20, ¶ 11.

JPMC contends that because plaintiff (1) did not timely disclose Ms. Wang's affidavit; (2) did not "properly disclose [h]er as a witness[;]" and (3) because this affidavit is "confusing and misleading[,]" the court should strike it. Mot. (doc. 48) at 1. Plaintiff maintains that she did properly disclose Ms. Wang and, what is more, her affidavit "is relevant and non-prejudicial[.]" Resp. (doc. 53) at 6. Therefore, the court should deny JPMC's motion to strike.

A. Disclosure

JPMC indicates that plaintiff "never disclosed [Ms.] Wang in a disclosure statement[.]" Mot. (doc. 48) at 2. As it turns out though, Ms. Wang was disclosed, but not accurately. In her July 14, 2006, Initial Disclosure Statement, due to a "clerical error" plaintiff identified "Lin Yi Wang[,]" not Cinyi Wang, as one of several "individual[s] likely to have discoverable information[.]" Resp. (doc. 53), exh. 1 thereto (doc. 53-2) at 3, ¶ 2. Clerical errors aside, undeniably, that Statement did not include Ms. Wang's address or phone number, as Rule 26(a)(1) contemplates.⁷ Instead, plaintiff indicated that Ms. Wang could be contacted "c/o" JPMC's law firm, and she provided that firm's address and telephone number. See id.

7 That Rule provides that "if known," the address and telephone number of an individual identified thereunder must be provided. Fed.R.Civ.P. 26(a)(1)(A).

In addition to plaintiff and Ms. Wang, in her Initial Disclosure Statement, plaintiff identified seven other "individual[s] like to have discoverable information." Id. at 3-5, ¶¶ 3-9. Plaintiff's description of their anticipated testimony is virtually identical. Plaintiff generically stated that Ms. Wang, like the other identified individuals, would testify regarding "general working conditions . . . job benefits, . . . knowledge of Plaintiff[.]" Id. at 3, ¶ 2. Significantly, no mention is made in that summary that Ms. Wang also claims to have been discriminated against by JPMC because she is an Asian woman.

As part of the discovery process, JPMC served plaintiff with interrogatories and a request for document production. When plaintiff responded on October 2, 2006, she had not yet had any contact with Ms. Wang. Nor at that juncture, plaintiff claims, did she have any documents which were responsive to document requests 3⁸ and 14.⁹ Therefore, during discovery the only mention of Ms. Wang was in that Initial Disclosure Statement and at plaintiff's deposition.

8 Basically that request directed plaintiff to produce all documents relevant to any of the claims in her complaint, "including . . . all documents concerning any communication with any other person concerning your claims[.]" Mot. (doc. 48) at 2.

9 This similarly broad request directed plaintiff to "[p]roduce all statements, . . ., obtained by you or your agent from any other person that are in any way related to the allegations in your Complaint." Mot. (doc. 48) at 2.

In particular, during her February 7, 2007, deposition, which was continued on March 27, 2007, plaintiff "clarified" Ms. Wang's "actual name and identity[.]" Resp. (doc. 53) at 3. When directly asked about the name "Lin Yi Wang" on her Initial Disclosure Statement, plaintiff responded, "It should be . . . Cin Yi Wang, C-i-n-y-I." Id. at 4. Additionally, plaintiff testified that Ms. Wang was "the other Asian VP at Chase[,]" and that she "was treated the same way" as plaintiff in that "she was stripped of her VP title and assigned clerical work." Id. at 5 (citation omitted).

March 30, 2007, was the court ordered deadline for non-expert discovery. Doc. 17 at 2, ¶ 4. Two weeks later, on April 13, 2007, Ms. Wang executed an affidavit "specifically for the purpose of opposing [JPMC's] anticipated motion for summary judgment." Resp. (doc. 53) at 5. Evidently JPMC was not made aware of that affidavit, however, until June 18, 2007, when plaintiff filed it in opposition to this summary judgment motion.

JPMC claims "severe prejudice" if the court considers Ms. Wang's affidavit because, first, it has "not had the opportunity to examine [her] regarding the allegations [there]in . . . or to conduct discovery regarding the reasons for the employment decisions that affected Wang." Reply (doc. 56) at 3. Second, although plaintiff indicated that Ms. Wang could be contacted "c/o" JPMC's law firm, JPMC states that "[d]espite the inquiry of [its] counsel," it was unable "to locate an employee or former employee of [defendant] named `Lin Yi Wang.'" Id. at 2. Third, JPMC objects because "plaintiff never disclosed that she intended to offer any testimony by Wang or anyone else indicating that Wang experienced race or sex discrimination as a result of conduct by [JPMC]." Id. Fourth, even though plaintiff became aware at her February, 2007 deposition (less than two months prior to the close of non-expert discovery) that her prior disclosure regarding Ms. Wang was not accurate, JPMC points out that she did not supplement her prior disclosures "revealing the true substance of Wang's intended testimony, nor did she submit a telephone number or address for Wang (who no longer worked for or was accessible to [it][.]" Id. at 3.

Information that "without substantial justification" is not disclosed as Rule 26(a)¹⁰ and 26(e)(1)¹¹ mandates, or amended pursuant to Rule 26(e)(2), may not, "unless such failure is harmless," be used as evidence on a motion. Fed.R.Civ.P. 37(c)(1).¹² Because it will be "prejudiced" by consideration of Ms. Wang's affidavit, JPMC is taking the position that the court "must" exclude that affidavit. Mot. (doc. 48) at 3 (citation omitted). To support this mandatory exclusion argument, JPMC relies upon three cases, all of which involved failure to timely disclose with respect to expert witnesses. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9^th Cir. 2001);Continental Laboratory Products, Inc. v. Medax International, Inc., 195 F.R.D. 675 (S.D.Cal. 2000); and Elgas v. Colorado Belle Corp., 179 F.R.D. 296 (D.Nev. 1998). Plainly Ms. Wang is not an expert witness. Therefore, JPMC's reliance upon those cases is misplaced. Nonetheless, for the reasons set forth below, in the exercise of its discretion the court will exclude Ms. Wang's affidavit. See Yeti, 259 F.3d at 1106 (citation omitted) (district courts have "particularly wide discretion . . . to issue sanctions under Rule 37(c)(1)").

10 This Rules governs "required disclosures[,]" including "[i]nitial [d]isclosures." Fed.R.Civ.P. 26(a)(1).

11 This Rule pertains to a party's duty to supplement the disclosures mandated under subdivision (a).

12 The Federal Rules of Civil Procedure were amended effective December 1, 2007, and "govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending." Fed.R.Civ.P. Order of April 30, 2007, ¶ 3 (emphasis added). The court finds that it is "just and practicable" to apply the Federal Rules as they read prior to December 1, 2007, because the pending motions were filed before that date.

Based upon Rule 26(e)(2), plaintiff "does not believe" she "was under any continuing obligation," especially after the close of discovery, to amend her response to JPMC's document request to identify Ms. Wang's affidavit. Resp. (doc. 53) at 5. Moreover, given plaintiff's deposition testimony highlighted above, plaintiff is taking the position that JPMC "can hardly claim . . . unfair surprise'" due to Ms. Wang's affidavit." Resp. (doc. 53) at 5 (internal quotation marks omitted).

Plaintiff's argument that she had no duty to supplement after the close of discovery is somewhat disingenuous. In Episcopo v. General Motors Corp., 2004 WL 628243 (N.D.Ill. 2004), upon which JPMC is relying, responding to a summary judgment motion, plaintiff moved to strike a document which defendant had not produced during discovery. Like plaintiff Huynh, the defendant inEpiscopo argued that it was "impossible" to produce the document during discovery because it was not created until after the close of discovery. See id. at *6. The Episcopo court soundly reasoned that "[a]lthough Rule 26 does not explicitly provide for supplementation of disclosures and responses after the close of discovery, . . . the language of Rule 26(e)(2) is broad enough to require supplemental disclosure under certain circumstances, regardless of whether discovery has closed[.]" Id.

The court further reasoned that a continuing duty to supplement under those circumstances was "consistent with the spirit behind the discovery rules, which is to promote liberal discovery responses in an effort to narrow the issues for trial and to prevent unfair surprise.'" Id. (internal quotation marks omitted) (citing, inter alia, Fed.R.Civ.P. 26, Advisory Committee Notes, 1993 Amendments, Subdivision (e)). That reasoning applies with equal force here. Plaintiff cannot be allowed to circumvent the liberal discovery rules by conveniently waiting until two weeks after the close of discovery to request a supporting affidavit from a potential witness — a witness she identified, albeit inaccurately, at the outset of discovery.

Furthermore, plaintiff has not shown "substantial justification" for not timely disclosing that she intended to rely upon Ms. Wang's statement that allegedly JPMC discriminated against here based upon her race and gender. Nor has plaintiff shown, as she must, that her failure to timely disclose the existence of Ms. Wang's affidavit was "harmless." See Yeti, 259 F.3d at 1107 ("burden is on the party facing sanctions to prove harmlessness" under Rule 37(c)(1)). For the reasons outlined above, the court grants JPMC's motion to strike the affidavit of Cinyi Wang (doc. 48); and necessarily plaintiff cannot rely upon this affidavit to attempt to show pretext.¹³

13 The court's decision to strike Ms. Wang's affidavit for failure to timely disclose obviates the need to address JPMC's additional argument that the court should not consider that affidavit because it is irrelevant and prejudicial.

To summarize, IT IS HEREBY ORDERED that:

(1) "Defendant's Motion to Strike Inadmissible Evidence Presented by Plaintiff in Response to Motion for Summary Judgment" (doc. 50) is GRANTED in part and DENIED in part; it is GRANTED with respect to the supplemental affidavit of Toni Huynh (doc. 47-3), but DENIED in all other respects;

(2) "Defendant's Motion for Summary Judgment" (doc. 43) is GRANTED; and

(3) "Defendant's Motion to Strike Affidavit of Cinyi Wang" (doc. 48) is GRANTED.

The Clerk of the Court is directed to enter JUDGMENT in favor of defendant and terminate the case.