Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Moussouris v. Microsoft Corp.

United States District Court, W.D. Washington, Seattle

June 25, 2018

KATHERINE MOUSSOURIS, et al., Plaintiffs,
v.
MICROSOFT CORPORATION, Defendant.

          ORDER DENYING CLASS CERTIFICATION

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the court is Plaintiffs Katherine Moussouris and Holly Muenchow's (collectively, “Plaintiffs”) motion for class certification. (MCC (Dkt. ## 228 (sealed), 381 (redacted)).) Defendant Microsoft Corporation (“Microsoft”) opposes the motion. (Resp. (Dkt. # 474).) Microsoft also filed a surreply to strike portions of Plaintiffs' reply. (Surreply (Dkt. # 349).) The court has considered the motion, the submissions filed in support of and in opposition to the motion, the relevant portions of the record, and the applicable law. The court also heard oral argument from the parties on June 11, 2018. (See Min. Entry (Dkt. # 503).) Being fully advised, the court DENIES the motion for the reasons detailed below.

         II. BACKGROUND

         Microsoft is a “global provider of software and software-related services as well as hardware devices.” (SAC (Dkt. # 55) ¶ 2.) Microsoft recognizes that diversity “is an integral and inherent part of [its] culture, fueling [its] business growth while allowing [it] to attract, develop, and retain [the] best talent.” (Parris Decl. (Dkt. ## 288 (sealed), 287 (redacted)) ¶ 3, Ex. 1 (“Resp. Docs.”) at 354.)[1] To that end, Microsoft devotes significant resources to various diversity and inclusion (“D&I”) initiatives, including D&I training courses, D&I plans to recruit and retain diverse employees, and D&I toolkits to aid internal discussions regarding diversity. (Dhillon Decl. (Dkt. ## 297 (sealed), 387 (redacted)) ¶¶ 6-13.) Microsoft's official policy (“Anti-Harassment/Anti-Discrimination policy”) prohibits all workplace discrimination and expresses zero tolerance for any form of workplace harassment. (Resp. Docs. at 18, 173.) Microsoft's Employment Relations Investigation Team (“ERIT”) investigates any alleged violations of that policy. (Parris Decl. ¶ 7, Ex. 5 (“DeLanoy Dep.”) at 31:3-8.)

         Plaintiffs-former and current Microsoft employees (SAC ¶¶ 6, 8)-challenge Microsoft's “continuing policy, pattern, and practice of sex discrimination against female employees in technical and engineering roles . . . with respect to performance evaluations, pay, promotions, and other terms and conditions of employment.” (Id. ¶ 1.) Plaintiffs claim that, as a result of Microsoft's employment policies and practices, female technical employees “receive less compensation and are promoted less frequently than their male counterparts.” (Id. ¶ 3; see also Id. ¶ 25 (“Microsoft discriminates against female technical employees in (1) performance evaluations; (2) compensation; and (3) promotions.”).) Plaintiffs now seek to certify a proposed class of female employees in Stock Levels 59-67 working in the Engineering and/or the I/T Operations Professions from September 16, 2012, to the present. (MCC at 1.)

         The court details Microsoft's structure, relevant employment practices, and history with gender equity issues before summarizing Plaintiffs' employment and the relevant procedural background.

         A. Microsoft's Structure

         Microsoft categorizes its employees into various groups. First, Microsoft groups its employees into Professions, the “highest level in Microsoft's taxonomy” (Whittinghill Decl. (Dkt. ## 321 (sealed), 320 (redacted)) ¶ 7), defined as “a group of functional areas . . . with common functional skillsets, business results, and success differentiators, ” (Shaver Decl. (Dkt. ## 229 (sealed), 233 (redacted)) ¶ 5, Ex. A (“MCC Docs.”) at 757).[2]Within Professions, Microsoft classifies employees into Disciplines, subgroups that represent “a different area of focus within a Profession.” (Whittinghill Decl. 8.) Microsoft further breaks down Disciplines into Standard Titles, which “represent a different role within a Discipline.” (Id. ¶ 10.) For example, an employee can be in the Engineering Profession in the Program Management Discipline with the Standard Title of Program Manager. (Shaver Decl. ¶ 9, Ex. E (“Whittinghill Dep.”) at 103:20-104:1.)

         Microsoft further divides Standard Titles into areas of specialization. (See Whittinghill Decl. ¶ 21.) This further subdivision, called a “functional hierarchy, ” features six tiers of division. (See Id. ¶ 22.) Oftentimes, this functional hierarchy-rather than the larger groupings of Profession, Discipline, or Standard Title-tracks reorganizations in the business that may affect an employee's responsibilities. (Id.) Thus, an employee may “keep the same Standard Title, Career Stage, and Stock Level, but end up working on very different products and/or services.” (Id.)

         The functional hierarchy reveals that there may be numerous subdivisions within a Standard Title. (See Id. ¶¶ 34-35.) For example, within the Data & Applied Scientist Standard Title, the functional hierarchy describes 268 unique positions that employees hold. (Id. ¶ 35, Ex. C.) As a result, job positions with the same Standard Title may describe significantly different roles. (See Id. ¶¶ 39-40, Ex. D (comparing a “Software Engineer II” on the Azure, Internet of Things team to a “Software Engineer II” on the Xbox team).) The number of unique positions varies from year to year because Microsoft alters its team structure in response to market demands. (Id. ¶ 37.) Thus, in any given year, Microsoft is likely to form new teams or eliminate old teams. (See id.) Those changes can generate or remove employee roles. (See id.)

         Microsoft also utilizes Stock Level and Career Stage classifications. Stock Level, also known as “Pay Level, ” represents “compensation ranges” that are set “relative to the professions [Microsoft] employ[s] and the markets in which [Microsoft] work[s].” (MCC Docs. at 760; see Id. (“Pay levels (such as levels 50, 59, or 64) represent salary ranges, based on an ongoing analys[i]s of local and discipline-specific labor markets and Microsoft's compensation strategy.”).) Stock Levels range from 59 to 98 (see Shaver Decl. ¶ 10, Ex. F (“Ritchie Dep.”) at 521:10-13; Farber Rep. (Dkt. ## 332 (sealed), 384 (redacted)) ¶ 20), and pay increases as the Stock Level increases (see Farber Rep. ¶ 20; Saad Rep. (Dkt. ## 354-1 (sealed); 385 (redacted)) ¶ 145). Career Stage “indicates at a high level the general degree of scope and impact of a role.” (Whittinghill Decl. ¶ 15.) There are three Career Stage designations. An “Individual Contributor” (“IC”) is “an entry-level employee with little or no relevant experience.” (Id. ¶ 16.) A “Lead” is “a professional who primarily contributes as an IC but also supervises a small team of ICs.” (Id. ¶ 17.) A “Manager” “manag[es] ICs and/or other managers.” (Id. ¶ 18.)

         B. Microsoft's Pay and Promotion Processes

         Plaintiffs challenge a specific aspect of Microsoft's employee evaluation process: the Calibration Process, during which managers compare and standardize employees' performance ratings across a cohort of similarly-leveled colleagues. (See Ritchie Dep. at 136:24-137:4, 157:6-8; see also Resp. Docs. at 55; DeCaprio Decl. (Dkt. # 295) ¶ 4; Helf Decl. (Dkt. ## 301 (sealed), 300 (redacted)) ¶ 4.) The Calibration Process took two forms over the course of the class period. From 2011 to 2013, Microsoft called the comparison processes “calibration meetings, ” with “a focus on the results achieved by the employee and how he or she achieved those results.” (Wilson Decl. (Dkt. # 322) ¶ 9.) In May of 2014, Microsoft altered components of this process and renamed calibration meetings “people discussions.” (DeCaprio Decl. ¶ 4.) The court discusses “calibration meetings” and “people discussions” before addressing the evaluation of the Calibration Process conducted by Plaintiffs' expert Dr. Ann Marie Ryan.

         1. Calibration Meetings

         Managers held calibration meetings to discuss employees' performance ratings relative to their similarly-positioned peers to determine the final performance ratings for each employee. (Resp. Docs. at 55; Helf Decl. ¶ 4.) Managers held those meetings at the end of the assessment process, after they had reviewed self-evaluations, feedback from others, and their own observations to recommend an initial Performance Rating from 1 to 5, with 5 as the lowest and 1 as the highest. (See Resp. Docs. at 39; Helf Decl. ¶ 9.) Managers based their initial ratings on three inputs: “What results were achieved, How they were achieved, and [the] Proven Capability” of the employee over time. (Resp. Docs. at 39 (bolding in original).) To aid managers' evaluation of the “what” and the “how, ” Microsoft provided general definitions and a rubric describing what each numerical rating represented. (Id. at 50-51.) For instance, Microsoft defined the “What” as evaluating the employee's “[r]esults against commitments for the past fiscal year.” (Id. at 50.) Additionally, Microsoft noted that a “1” should be given out to approximately 20% of employees who “[g]reatly surpassed expectations with performance and business impact greater than the vast majority of peers.” (Id. at 51.)

         Managers then handed over their initial performance ratings to and discussed them with the Calibration Manager, who represented a number of employees at a calibration meeting. (Id. at 52-53.) At the calibration meeting, Calibration Managers explained the reasoning for employees' initial performance rating and compared the relative performance of employees doing similar work. (DeCaprio Decl. ¶ 4.) Employees were grouped by Stock Level into peer groups for these comparisons. (MCC Docs. at 13.) The goal of the meeting was to “ensure there was consistency to how performance was evaluated and rated vis-à-vis the performance of [an employee's] peers.” (Wilson Decl. ¶ 9.) Microsoft encouraged managers to refrain from making “artificial distinctions . . . simply to meet an approximate distribution” of how many employees should receive a certain rating. (Resp. Docs. at 55.) Thus, Microsoft recognized that an “extraordinary high-performing group may . . . justify a distribution that is skewed to the higher end of an approximate distribution, ” whereas an “underperforming group may . . . justify a distribution that is skewed to the lower end.” (Id.)

         Beyond this guidance, Microsoft sought to “empower leaders and managers to use their judgment in evaluating the performance of their employees” by localizing the evaluation process to each group. (Wilson Decl. ¶ 11; see also Helf Decl. ¶ 6 (stating that the calibration meetings “looked different depending on the level of the roles for the employees involved and . . . the way the leader wanted to run the meeting”).) Microsoft encouraged every meeting leader to create the approach to be used in his or her calibration meeting, including what issues and topics to discuss; how the meeting would be conducted; and the specific qualities that each group would look for in evaluating employees. (Wilson Decl. ¶ 13; id. ¶ 21 (describing calibration meetings as “designed to be flexible”).) Thus, although Calibration Managers ran the meetings according to Microsoft's framework, “the managers participating in the calibration meeting” determined “the common core priorities . . . for the larger group, ” any “common objectives, ” and “what good work looked like.” (DeCaprio Decl. ¶ 8.)

         As a result, “the personalities in the room” largely dictated how calibration meetings unfolded. (Wilson Decl. ¶ 15; see also Helf Decl. ¶ 15 (“No two [c]alibration [m]eetings that I attended were the same.”).) Calibration meetings thus varied “both structurally and substantively.” (DeCaprio Decl. ¶ 9.) Structurally, the meeting leader determined how the discussion would be held, such as through the use of a PowerPoint versus the use of physical cards to sort employees. (Id.) Substantively, the discussions focused on different issues, such as budgetary needs versus employee talent. (Id. ¶ 10.)

         Managers similarly discussed promotions during calibration meetings. In determining promotions, managers considered business need, demonstrated employee readiness, and available budget. (Helf Decl. ¶ 30; Resp. Docs. at 38.) Microsoft, as with the performance ratings, provided general definitions of the three promotion criteria. (See Resp. Docs. at 38.) Because promotions depended upon the budget in any given year, promotions varied across levels, locations, Professions, and year. (See Id. at 36.)

         The calibration meeting recommendations were provided, or “rolled up, ” to the next level of management for review. (See Wilson Decl. ¶ 24.) In other words, the recommendations reached by lower-level managers “cascaded upwards” for approval by higher-level managers. (See Helf Decl. ¶ 21.) Higher-level managers did not usually make significant adjustments to the individual recommendations but would instead “focus[] on the budget and ensur[e] the actual distribution was in line with the budget.” (Id. ¶ 27.) The roll up process continued until the recommendations reached the Executive Vice President (“EVP”), who “in practice . . . did not change recommendations made at” lower-levels. (Id.; see also Wilson Decl. ¶ 24.)

         2. People Discussions

         Since 2014, Microsoft “moved away from lengthy meetings for comparing and evaluating employees” (Helf Decl. ¶ 31) and instead shifted its evaluation process to focus on “the impact the employee's performance makes on his or her organization and across the company in light of his or her role” (Wilson Decl. ¶ 10). In this new evaluation process, managers held “people discussions” to evaluate the impact of an employee's performance. (Id.) Unlike before, Microsoft no longer had “numerical performance ratings or a company-wide anticipated distribution of performance ratings or annual rewards.” (Id.; see also DeCaprio Decl. ¶ 4.) Thus, the “people discussion” meeting often focused on “what rewards are right for each individual employee based on the impact that particular employee's performance had on the group and the company.” (Wilson Decl. ¶ 23; see also Helf Decl. ¶ 4.)

         Aside from the change in focus, the people discussions resembled the calibration meetings. Like calibration meetings, the process rolled upwards, with higher-level managers reviewing the recommendations made by lower-level managers. (See Helf Decl. ¶ 36.) And as was the case previously, higher-level managers are less likely to substantively change recommendations, especially those concerning lower-level employees. (See id.) This roll-up process continued until the head of the organization approved the recommendations. (See id.; Wilson Decl. ¶ 24.)

         The people discussion process “empower[ed] managers to own the assessment by focusing solely on the individual employee instead of on the individual as compared to others.” (Helf Decl. ¶ 31.) Thus, Microsoft “encourage[d] leaders to take more direct ownership of the evaluation process.” (Id. ¶ 35.) Managers “ha[d] much more latitude to determine the priorities for their organization and how to accomplish those priorities, ” including what inputs to consider during the people discussions and which employees to discuss. (Id.; DeCaprio Decl. ¶ 14 (observing variations in people discussions, such as who was discussed and how those discussions were run).) Managers could even define for themselves “what high impact for different types of roles looks like, such as what type of impact do [they] expect of a Level 59 software engineer role.” (DeCaprio Decl. ¶ 14.) As a result, “there is a lot of discretion as to how [managers] reach [their] end results, ” and the people discussions “var[ied] significantly” based on who was leading the meeting. (Id. ¶¶ 35, 42-43.)

         Managers also discussed promotions during people discussions, as they did previously during calibration meetings. They viewed the promotion criteria with a focus on employee impact. (See Helf Decl. ¶ 39.) Managers had “complete discretion” as to their justifications for a promotion. (Id.)

         3. Dr. Ryan's Evaluation

         To challenge Microsoft's Calibration Process, Plaintiffs submit the expert report of Dr. Ann Marie Ryan, a professor of organizational psychology. (See Ryan Rep. (Dkt. ## 231 (sealed), 379 (redacted)) ¶ 1.) Dr. Ryan reviewed the process Microsoft implemented to make pay and promotions decisions and examined how Microsoft's processes aligned with best practices for employee evaluation. (See Id. ¶¶ 5, 11.) After reviewing the relevant materials, Dr. Ryan found “no evidence that compensation and promotion decisions are made reliably at Microsoft.” (Id. ¶ 12.) Specifically, Dr. Ryan takes issue with the lack of “sufficient standardization” in the Calibration Process, which “undermines the reliability and validity” of personnel decisions. (Id. ¶ 13.)

         Overall, Dr. Ryan criticizes Microsoft for not providing managers sufficient guidance on how to make pay and promotion decisions. For instance, Dr. Ryan observes that Microsoft “does not provide evidence to support how compensation level and promotion decisions are determined, ” as reflected in the fact that managers are allowed to give open-ended promotion justifications that do not need to be tied to the promotion criteria. (Id. ¶¶ 18-19 (emphasis removed).) As a result, managers may “use varied criteria across individuals for the same decision”; use “irrelevant criteria”; or “use different standards or weighting of the same criteria.” (Id. ¶ 20.) Additionally, Dr. Ryan takes issue with the fact that Microsoft did not prescribe any weights to the underlying “what, ” “how, ” and “capacity” criteria, so that managers could weigh these criteria differently. (Id. ¶¶ 26-31.)

         Moreover, Dr. Ryan observes a lack of uniformity in what information managers considered and the process for considering that information. (See Id. ¶ 32.) For example, while Microsoft gave “general guidance” to consider “work products and conversations, ” “the quantity and nature of information serving as input into compensation level and promotion decisions varied.” (Id. ¶ 34.) Dr. Ryan also finds variation in “how the process of evaluating employee performance . . . was conducted” and “how it was determined which employees were discussed.” (Id. ¶ 35.)

         Lastly, Dr. Ryan critiques Microsoft for inadequately monitoring the Calibration Process to ensure the validity of outcomes. (See Id. ¶¶ 40-42.) No. reports are generated with regard to monitoring, so it was “unclear” whether the monitoring was consistently done, and if so, the quality of the monitoring efforts. (Id. ¶ 42.) Microsoft allegedly does not train managers on how to weigh criteria in relation to job requirements or how to justify pay and promotion decisions with reference to the criteria used. (Id. ¶ 43.) Nor does Microsoft provide feedback to its managers as to how their decisions are or are not calibrated to the relevant criteria. (Id.)

         C. Microsoft Experience with Gender Equity Issues

         Microsoft is no stranger to the issue of gender pay equity. In October 2014, the Chief Executive Officer (“CEO”) of Microsoft, Satya Nadella, sent a company-wide email stating that “the overall differences in base pay among genders . . . (when we consider level and job title) is consistently within 0.5% at Microsoft.” (MCC Docs. at 38.) Microsoft also published an Equal Pay Study in April 2016, in which it stated that women at Microsoft earn 99.8¢ for every $1.00 earned by men with the same job title and level. See Katherine Hogan, Ensuring Equal Pay for Equal Work, Official Microsoft Blog (Apr. 11, 2016), https://blogs.microsoft.com/blog/2016/04/11/ensuring-equal-pay-equal-work/ (last visited June 21, 2018). After both announcements, Microsoft employees responded that these studies, which only analyzed pay within the same levels, portray a false equity and hide disparity in promotions. (See, e.g., MCC Docs. at 516-17.) As one employee put plainly, “[t]here is an important distinction between equal pay for equal level, and equal pay for equal work.” (Id. at 771.)

         In response to employee concerns and as acknowledgement of the work remaining to address the pay gap, the Senior Leadership Team (“SLT”) at Microsoft “meet[s] on a regular basis” to “review and act on the [D&I] data.” (Id. at 1071.) For example, the 2015 SLT D&I Core Priorities Action Plan details several “accountabilities” that various SLT members “own, ” including measuring and tracking promotion trends and time in role for women; reviewing the recruitment, hiring, and development processes for unconscious bias; updating and requiring all employees to complete an unconscious bias training; and creating sponsorship opportunities for higher-leveled female employees. (Id. at 270-73.) Microsoft also employs ERIT as a tool against discrimination. From 2010 to 2016, ERIT received 238 complaints by female employees, 118 of which concerned gender discrimination. (See Shaver Decl. ¶ 7, Ex. C.) Of these 118, ERIT concluded only once that the complaint was founded-that is, the conduct complained of violated the Anti-Harassment/Anti-Discrimination policy. (See Id. at 5.) However, even when ERIT determines a complaint is unfounded, ERIT may still discipline the alleged offender. (See, e.g., Resp. Docs. at 283.)

         Additionally, as a federal government contractor, Microsoft has been audited by the Department of Labor's Office of Federal Contract Compliance Programs (“OFCCP”) for compliance with federal law and regulations. The OFCCP conducted several audits of Microsoft's locations without findings of violation. (See Parris Decl. ¶ 21, Ex. 19.) On one occasion, however, in 2016, the OFCCP issued a Notice of Violation letter regarding Xxxxx [3](See id.)

         D. Plaintiffs' Employment at Microsoft

         Ms. Moussouris and Ms. Muenchow both worked at Microsoft-Ms. Moussouris in the Engineering Profession and Ms. Muenchow in both the Engineering and I/T Operations Professions. Plaintiffs also offer several female employees' declaration testimony detailing their experiences at Microsoft. The court summarizes each in turn.

         1. Katherine Moussouris

         Ms. Moussouris worked at Microsoft from April 2007 to May 2014. (SAC ¶ 6; Moussouris Decl. (Dkt. # 242) ¶ 2.) Microsoft hired Ms. Moussouris in April of 2007 as a Level 62 Security Program Manager for the Trustworthy Computing Group. (Moussouris Decl. ¶ 2; SAC ¶ 62.) Her position, involving work as a security strategist, featured what Ms. Moussouris calls “unique elements” because she created “new programs that didn't exist before.” (Moussouris Dep. (Dkt. # 288-5) at 279:4-11.) Thus, she was not aware of another employee whose role or responsibilities were similar to hers. (See Id. at 279:4-17.)

         Microsoft promoted Ms. Moussouris to a Level 63 Program Manager II in 2008 and to a Level 64 Senior Program Manager in 2010. (Moussouris Decl. ¶ 2.) After 2010, however, Ms. Moussouris received no more promotions, despite purportedly being “responsible for groundbreaking efforts in the security industry” and obtaining “substantial defensive security research prizes.” (See Id. ¶¶ 4-5.) In 2012, despite her eligibility for promotion to a Level 65 Principal Program Manager, “two less qualified men in [her] group were promoted over [her], even though they had not performed the same scope of work nor received the same level of recognition in the industry.” (Id. ¶ 4.) Her direct manager gave her an initial performance rating of 2 out of 5; her performance rating was bumped down to a 3 during the Calibration Process. (Moussouris Dep. at 68:12-13; 93:10-94:4.) After her performance rating was downgraded, her manager reportedly expressed regret that she “was not given the score that he believes [she] deserved.” (Id. at 94:2-4.) Ms. Moussouris believes that gender discrimination affected her 2012 performance review. (Id. at 260:4-6.) The following year, in 2013, Ms. Moussouris was up for a promotion but again passed over; another male colleague secured leadership of the team. (Moussouris Decl. ¶ 4.) Her manager made an initial performance rating recommendation of a 1 out of 5, which was bumped down to a 2 during the Calibration Process. (SAC ¶ 64.)

         Ms. Moussouris, as a manager herself, supervised several employees. (See Moussouris Dep. at 147:12-24.) Some of those employees disagreed with her management style. (Id. at 149:10-14, 150:23-25.) As a manager, Ms. Moussouris participated in the Calibration Process by reviewing her employees and attending calibration meetings. (See Id. at 103:16-23, 104:19-21.) Some employees under Ms. Moussouris had their initial performance recommendations downgraded. (See Id. at 119:4-18.)

         Ms. Moussouris describes the Microsoft culture as “hostile towards women.” (Moussouris Decl. ¶ 6.) She claims that female employees were “frequently interrupted”; “talked over at meetings”; ignored when they shared ideas that male counterparts would later raise and receive praise for; and excluded from important discussions and business opportunities. (Id.) She also contends that women's judgment and expertise were “much more likely to be called into question than men's.” (Id.) Ms. Moussouris describes this problem as “pervasive” and one that female employees and managers regularly discuss. (Id.)

         Making complaints to Human Resources (“HR”), Ms. Moussouris attests, “does not make any difference.” (Id. ¶ 7.) In fact, Ms. Moussouris made three complaints to HR while at Microsoft. First, she complained about the Director of her group who allegedly sexually harassed women he oversaw. (Id.) Although HR found that he “had in fact sexually harassed these women, ” the Director was “merely re-assigned to a different group, while retaining his title and influence.” (Id.) Before he was re-assigned, he gave Ms. Moussouris a low bonus. (Id.) Ms. Moussouris complained about this retaliation but again, HR took no action. (Id.) Lastly, Ms. Moussouris complained when her new supervisor-a man who was promoted over her-replaced her responsibilities with “low-level tasks that no men in [the] group were asked to do.” (Id.) Once again, HR allegedly took no action. (Id.)

         2. Holly Muenchow

         Ms. Muenchow has worked for Microsoft since September 2002. (Muenchow Decl. (Dkt. # 243) ¶¶ 1-2.) Microsoft initially hired her as a Level 58 Software Test Engineer in the Engineering Profession. (Id. ¶ 2; SAC ¶ 73.) She then became a Level 59 Software Design Engineer in 2005. (Id.) Microsoft promoted Ms. Muenchow to a Level 60 employee in the beginning of 2008 and a Level 61 employee later that same year. (Id.) In 2012, Ms. Muenchow transferred to the I/T Operations Profession to become a Level 62 Senior Program Manager. (Id.) In 2016, she switched back to the Engineering Profession as a Senior Operations Program Manager. (Id.) Ms. Muenchow is currently a Level 63 employee. (See Id. ¶ 4.)

         Like Ms. Moussouris, Ms. Muenchow believes that Microsoft compensated her less than her similarly-situated male colleagues. (Id. ¶ 3.) Additionally, Ms. Muenchow asserts that Microsoft denied her promotions that were instead given to less qualified men and that the promotions she did receive should have occurred sooner. (Id. ¶ 4; see Muenchow Dep. (Dkt. ## 288-6 (sealed), 287-4 (redacted)) at 60:1-7.) She believes her managers discriminated against her by requiring her to adhere to expectations rooted in gender stereotypes-such as tone of voice-that would not apply to her male colleagues. (Muenchow Dep. at 52:17-53:6, 55:1-12.) This gender bias in expected behavior, she asserts, informed much of the negative feedback she received and resulted in her achievements not being acknowledged as her male colleagues' efforts were. (See, e.g., id. at 177:10-16, 190:25-191:10.) Although Ms. Muenchow never advanced higher than a Level 63, she saw “male colleagues be promoted to high levels for which [she] was qualified and not considered.” (Muenchow Decl. ¶ 4.) She also observed “men generally advanc[ing] more rapidly than women, despite similar scope of work and performance.” (Id. ¶ 5.)

         Ms. Muenchow also describes a culture of hostility at Microsoft towards women. (See Id. ¶ 6.) She states that women are “held to a different standard than men.” (Id.) For instance, women are labeled as “too aggressive” when they speak up in meetings, whereas men “routinely interrupt or talk over women without criticism.” (Id.) Her former manager, who was female, revealed to Ms. Muenchow that she could not “advocat[e] passionately” for her employees during calibration meetings because of this perceived bias. (Id.)

         Like Ms. Moussouris, Ms. Muenchow has also filed complaints with HR to no avail. (See Id. ¶ 7.) Ms. Muenchow complained to HR about the “culture of bias towards women.” (Id.) In response, HR informed her that Microsoft would introduce “bias training, ” but Ms. Muenchow reports that the training has not resolved the issue. (Id.) Ms. Muenchow has also requested to see Microsoft's data regarding compensation and promotion rates for female employees, but HR stated that it did not have access to that data. (Id.)

         3. Other Employees

         Nine other female employees echo Ms. Moussouris and Ms. Muenchow's sentiments. (See, e.g., Dove Decl. (Dkt. # 239) ¶ 4.) The female employees, through declarations submitted by Plaintiffs, report similar claims of compensation discrimination, contending that they were paid less than their similarly-situated male counterparts (see Miller Decl. (Dkt. # 241) ¶ 5) and at times, even below the pay of less-qualified male colleagues (see Smith Decl. (Dkt. # 244) ¶ 5). At least one woman, Debra Dove, reports that her pay disparity resulted from the Calibration Process, during which “someone had to receive zero rewards, and that someone became [her] because of [her] gender.” (Dove Decl. ¶ 5.)

         These female employees also report that they were denied promotions ultimately given to similarly-situated or less qualified male employees. (See, e.g., Albert Decl. (Dkt. # 237) ¶ 6; Smith Decl. ¶ 6.) For instance, Heidi Boeh sought a promotion after returning from maternity leave. (Boeh Decl. (Dkt. # 238) ¶ 5.) Her manager stated that he “did not want to ‘waste' a promotion on [her] in case [she] became pregnant again, ” due to his understanding that she “would want to ‘time' [her] children to be close in age.” (Id.) Olga Hutson inquired about a promotion but “was told repeatedly that it was not possible . . . to receive a promotion to Level 65 because almost no one made it to that level.” (Hutson Decl. (Dkt. # 240) ¶ 5.) But, while she remained at a Level 64 for her six-year tenure, Microsoft promoted several men to Level 65. (Id.) Suzanne Sowinska, while participating as a manager in the Calibration Process, noticed that women were “disadvantaged compared to men with no greater qualifications.” (Sowinska Decl. (Dkt. # 245) ¶ 5.) Male employees' projects were “valued more highly than similar projects managed by women . . . even when the technical difficulty and value to the company was greater for the women's projects.” (Id.)

         Moreover, the nine declarants describe Microsoft's culture of hostility towards women, leading female employees to feel undervalued and marginalized. Many describe observations of sexual harassment, including inappropriate comments regarding female employees' looks, figures, or clothing; groping and other unwanted touching; and other characteristics of a “male-dominated culture” within which female employees struggled to operate. (Sowinska Decl. ¶ 7; see also, e.g., Warren Decl. (Dkt. # 248) ¶ 7 (describing a Microsoft party with “scantily clad women dancing on tables”); Miller Decl. ¶ 8 (describing inappropriate comments regarding her clothing, unwanted touching, and manager inquiries into her marriage status).) Some were harassed themselves. (See, e.g., Boeh Decl. ¶ 7.) Mary Smith described how a male colleague “screamed and cursed . . . and threatened to kill [her].” (Smith Decl. ¶ 8.) When she informed her manager, he acknowledged that the male colleague was “sexist” but did nothing further. (Id.)

         Almost all of the female employees recount how Microsoft excluded them from business opportunities and applied double-standards-rooted in gender stereotypes about behavior-to dictate how female employees should behave. (See, e.g., Vaughn Decl. (Dkt. # 247) ¶ 6.) For instance, Jennifer Underwood states Microsoft did not give her the staff, support, and funding to attend industry events while male peers received “significant financial and administrative support to fulfill the same job duties.” (Underwood Decl. (Dkt. # 246) ¶ 7.) Microsoft allegedly downgraded Ms. Sowinska's performance rating in the Calibration Process because she “did not smile enough.” (Sowinska Decl. ¶ 7.) Kristen Warren observed that “men are praised for exhibiting strong opinions and being assertive, while women are admonished for the same behavior.” (Warren Decl. ¶ 7.) In fact, managers told her to “control [her] ‘emotions' after [she] expressed opinions in meetings, even though men making similar comments did not receive negative feedback.” (Id.)

         None of the female employees believes that the HR complaint process is effective. Many complained to HR regarding their lack of promotions (Vaughn Decl. ¶ 7), their performance ratings (Dove Decl. ¶ 9), or their inability to secure necessary resources (Underwood Decl. ¶ 9). HR allegedly responded that there was nothing it could do. (See, e.g., Vaughn Decl. ¶ 7.) Other women complained of their treatment upon returning from maternity leave, but HR failed to respond or follow up. (See Albert Decl. ¶ 8; Boeh Decl. ¶ 8.) HR similarly did not investigate complaints regarding threats or harassment. (See Smith Decl. ¶ 9.) When HR did follow up, female employees were dissatisfied with the ensuing investigation. For instance, when investigating Ms. Hutson's complaint, HR acknowledged that the manager “acted inappropriately” but nonetheless found no violation of Microsoft's Anti-Harassment/Anti-Discrimination policy. (Hutson Decl. ¶ 6.) The female employees also state that female complainants face retaliation. Ms. Smith recounts that after complaining about threats and hostility from male colleagues, Microsoft assigned her responsibilities outside the normal scope of her position. (Smith Decl. ¶ 10.)

         E. Procedural History

         Plaintiffs filed their original complaint on September 16, 2015, challenging Microsoft's continuing policy, pattern, and practice of sex discrimination against female employees in technical and engineering roles. (Compl. (Dkt. # 1) ¶ 1.) Plaintiffs amended their complaint on October 27, 2015 (see FAC (Dkt. # 8)), and Microsoft filed a motion to dismiss for failure to state a claim, or alternatively, a motion for a more definite statement (MTD (Dkt. # 23) at 1). The court granted in part and denied in part Microsoft's motion. (See MTD Order (Dkt. # 52) at 2.) The court denied the motion as to Plaintiffs' disparate treatment claims and Ms. Moussouris's retaliation claims (id. at 20, 24-28) but dismissed, with leave to amend, Plaintiffs' ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.