Kirsten Wiley v. Microsoft Corporation ( 2014 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
KIRSTEN WILEY,
No. 69694-7-1
Appellant,
DIVISION ONE
v.
MICROSOFT CORPORATION,
a Washington corporation, UNPUBLISHED OPINION
Respondent. FILED: March 10. 2014
Spearman, A.C.J. — Former Microsoft Corporation employee Kirsten
Wiley appeals the trial court's summary dismissal of her claims against the
company for (1) gender discrimination in violation of the Washington Law Against
Discrimination ("WLAD"), chapter 49.60 RCW, and (2) breach of an enforceable
promise of specific treatment in specific circumstances underThompson v. St.
Regis Paper Co.. 102 Wash. 2d 219, 685 P.2d 1081 (1984). Finding no error, w^ :>::c
^
affirm.
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FACTS1
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Kirsten Wiley began working for Microsoft in 1992 in a sales position anji
was last promoted in 2007 to a director of marketing and communications
position in the Microsoft Research ("MSR") Group. In that role, she was
responsible for providing marketing and public relations services to business
1The trial court sealed certain records, which remain sealed in this court. Accordingly, we
have granted Wiley's motion to file her unredacted briefs under seal.
No. 69694-7-1/2
partners within MSR and generating news coverage and publicity to support their
goals. She also directed some of the work of Waggener Edstrom, Microsoft's
primary external public relations agency. Wiley's reviews from 2006 to 2009 were
generally positive. She earned accolades,2 but also received constructive
criticism during that time.3 Since 2003, Wiley reported to Kevin Schofield, who
reported to Rick Rashid, who reported to Chief Research and Strategy Officer
Craig Mundie, who reported to Chief Executive Officer Steve Ballmer.
In 2009, Mundie instructed the MSR public relations team and the
Corporate Communications team to coordinate more closely to ensure the
cohesiveness of Microsoft's external communications. Several individuals in
Corporate Communications had problems working with Wiley. These included
David Pritchard (a senior director and Mundie's chief of staff), Peter Haynes
(Pritchard's direct report), Frank Shaw (hired in August 2009 as the vice
president of Corporate Communications), and Tom Pilla (a communications
manager and Shaw's direct report). Pritchard, Haynes, and Shaw agreed to keep
2Wiley's reviews were as follows: 2006 - Achieved, Strong; 2007 - Exceeded, 20%;
2008 - Achieved, 20%; 2009 - Achieved, 20%. Twenty percent was the highest possible rating.
Her reviews included praise ("You are a huge asset to the organization and a fantastic
contributor." Clerk's Papers (CP) at 1010 (2007 review). "You've been doing really solid work this
year." CP at 1017, (2008 review). "You're clearly delivering great results for MSR and for the
company, in a tough and rapidly changing environment." CP at 1021, (2009 review)). Wiley was
designated a "high potential" employee in 2008 and 2009 and was selected for Microsoft's
"Bench" program in 2008. CP at 1044. In 2010, she was awarded the "Gold Star" and a bonus of
$80,000 worth of stock.
3These included concerns thatWiley failed to respond to e-mails and requests; left items
unfinished or unmentioned when she went on vacation or had an unplanned absence; was
defensive and negative with respect to new approaches and ideas; and at times was "too focused
on the existence of a problem and [had] a hard time getting beyond creating a solution." CP at
140.
No. 69694-7-1/3
each other posted regarding their concerns about Wiley as they arose. CP 1104,
1107-08.
One incident took place in March 2010, when Mike Houlihan from
Waggener Edstrom emailed Microsoft employee Lou Gellos and Wiley about a
KUOW reporter's request for an interview about a Microsoft technology and a
patent issued that day.4 CP at 1157. Wiley responded, "Microsoft doesn't
comment on patents." kl Gellos then sent Wiley's email to Shaw and others,
writing that KUOW was interested in a recent patent filing and stating, "In the
spirit of rapidly responding to a request that is newsworthy, I asked MSR for
some help amplifying their fine innovative work. And I received what we regularly
receive. A wall." Id. Shaw wrote to Wiley, "'Why would we not want to talk about
this technology? Not the patent per se, but what it could mean?'" CP at 155. He
had also not heard ofa Microsoft policy of not commenting on patents.5 CP 764.
Wiley, Shaw, and Schofield exchanged emails, with Wiley and Schofield
expressing concerns about not knowing what the reporter wanted to talk about
and whether there was someone who could speak on such subject. Wiley stated
that she wanted to decline on the story. Shaw wrote, "At this point, I think I am
just going to give up. It feels like we wildly overcomplicated this." He wrote that
Wiley or Schofield could have done "a short interview that would have reflected
well on Microsoft and on MSR in our local community, with the chance to be
4The patentapplication had been published for nearly two years.
5Microsoft does not have a policy of not commenting on patents. Wiley contends it does,
pointing to Mundie's testimony. But Mundie's testimony was that "when patents have been filed,
and in prosecution, in order not to disrupt the legal process of prosecuting an application,
we...don't talk about those applications in any detailed way." CP at 1040. He did not testify that
Microsoft does not comment on patents, only patent applications in prosecution.
3
No. 69694-7-1/4
picked up more broadly." jd. Shaw and Haynes were evidently frustrated, with
Haynes writing to Shaw that KUOW did not want to write about "$#@%ing
patents" and Shaw replying, "I'm getting hot now." CP at 1159.
Also in March 2010, Haynes asked Wiley to keep him "in the loop" about a
particular developing story, and not wait until afterward to inform him, noting the
need for his team to be involved along the way. CP at 260. He referred to
Mundie's directive to "accrue to higher-level message goals." He then wrote to
Shaw and Pritchard to express his apparent displeasure with Wiley.
In spring 2010, Schofield told Wiley that people in Corporate
Communications had complained of difficulty working with her. Schofield then
emailed Shaw that Wiley took the feedback well and was committed to making
the partnership with his team and Haynes' team work, and that he would oversee
her while she worked to repair relationships. Shaw forwarded the emails to Pilla,
asking him to "reinforce" his message. Pilla responded, "'Will do.'" ]± Pilla
understood Shaw's message to refer to his advice that Schofield should take the
lead from Wiley as the main partner between her team and the teams of Shaw
and Haynes. CP at 1172. Shaw wrote to Pritchard that Schofield had had a
conversation with Wiley and that "[tjhat's a step." CP at 1179.
In July 2010, Shaw wrote to Pilla that Schofield had not received
sustained feedback critical of Wiley and that it was time to be "super direct" with
Schofield and "put the hammer down." CP at 1190. At some point, Pritchard,
Haynes, and Pilla encouraged certain individuals to provide feedback to
No. 69694-7-1/5
Schofield about Wiley.6 In August 2010, Pritchard suggested that Schofield meet
with Human Resources and managers in Corporate Communications to discuss
concerns about Wiley. On October 15, Pritchard, Haynes, and Pilla met with
Schofield. Pritchard emailed HR director Sheryl Peterson, stating there was
consensus amongst those attending the meeting that Wiley should be in a
different role.
Schofield and Peterson began soliciting feedback about Wiley from her
direct reports, Waggener Edstrom employees, and others from MSR and
Corporate Communications. Seventeen men and women were interviewed,
Shaw not among them. On December 6, 2010, Schofield and Peterson met with
Wiley to discuss the feedback, which contained negative comments.7 Schofield
said Wiley had to take immediate steps to correct the issues identified. Schofield
and Wiley prepared an action plan to help Wiley mend relationships with
business partners and direct reports. Microsoft offered Wiley an executive coach
and mentor. She declined the offer of a mentor.
6Haynes emailed one person on October 14, 2010, encouraging herto provide feedback
to Peterson and stating that her doing so would be helpful to him and Pritchard.
7Comments included that she was "bullying," "blocking" and "scapegoating," was
"disrespectful of leaders...and other groups," was "defensive" when approached, was
"confrontational and resistant when people reach out to her," had a "negative attitude," had "zero
credibility with partner teams," had a "lack of engagement, availability and physical presence" and
"[did]n't want to do work or be accountable." CP at 264-66. Others noted that they "pick[ed] up a
lot of work because of Wiley "when it [was not] their job to do so." CP at 265. Some found that
Wiley was "[u]nwilling to delegate" and "micromanage[d]."Id. Interviewees commented that Wiley
had a "lack of strategy, marketing skills, experience and thought leadership," did not "understand
the basics of marketing and PR," and that her "plans d[id]n't have goal[s] [or] strategies." ]g\
Some who gave feedback commented that they had been afraid to come forward with their
concerns about Wiley because they feared she might retaliate against them or felt that Schofield
condoned her behavior.
No. 69694-7-1/6
After the meeting, Wiley wrote to Schofield and Peterson, "I believe these
slides and the behind-the-scenes work that led to their creation were constructed
with the sole intention of creating a case to justify terminating me from Microsoft."
CP at 267. She attributed the feedback to her standing up to Shaw and refusing
to discuss patent applications with the media in violation of company policy.
On February 16, 2011, Wiley filed a complaint alleging (1) gender
discrimination under the WLAD and (2) a Thompson claim for breach of a
promise of specific treatment in a specific situation. The gender discrimination
claim was based on (a) the feedback and treatment she received in 2010 and (b)
Microsoft's alleged failure to promote her to a higher level and/or increase her
salary, as compared to similarly situated male employees. For the Thompson
claim, Wiley alleged Microsoft specifically promised employees that if they refuse
to violate corporate policy, it would not permit retaliation against them and that
she relied on this promise to her detriment when she refused to violate corporate
policy by speaking to the media about patent applications.
On November 7, 2011, Wiley went on medical leave due to depression
and anxiety. Microsoft held her position open for seven months before it replaced
her with K.K., as she had not provided a return-to-work date.8 CP 598. Following
discovery, Microsoft filed a motion to dismiss Wiley's claims on summary
8Wiley never returned to work, and for reasonsthatare not in the record, is no longer a
Microsoft employee. Wiley filed a motion in this Court under RAP 9.11 to supplement the record
with three pages of additional new evidence from February and March 2013 that relate to why
she is no longer employed at Microsoft. Her motion is denied; this evidence was not before the
trial court when it ruled on Microsoft's motion for summary judgment. See RAP 9.12 (review of
summary judgment limited to evidence before trial court).
No. 69694-7-1/7
judgment. The trial court granted Microsoft's motion and entered a judgment for
Microsoft's costs. Wiley appeals the dismissal of both of her claims.
DISCUSSION
This court reviews summary judgment de novo. Hearst Communications,
Inc. v.Seattle Times Co.. 154 Wash. 2d 493, 501, 115 P.3d 262 (2005). Summary
judgment should be granted only if the pleadings, affidavits, depositions, and
admissions on file demonstrate the absence of any genuine issues of material
fact and that the moving party is entitled to judgment as a matter of law. Sheehan
v. Central Puqet Sound Regional Transit Authority. 155 Wash. 2d 790, 797, 123
P.3d 88 (2005); CR 56(c). The court must consider all facts and reasonable
inferences in the light most favorable to the nonmoving party. Michael v.
Mosquera-Lacv. 165 Wash. 2d 595, 601, 200 P.3d 695 (2009). Summary judgment
is appropriate if reasonable minds could reach but one conclusion. Vallandigham
v. Clover Park Sch. Dist. No. 400. 154 Wash. 2d 16, 26, 109 P.3d 805 (2005).
Gender Discrimination Claims
To prove sex discrimination under the WLAD, an employee must show
that her employer "treats some people less favorably than others because of
their gender. Shannon v. Pay 'N Save Corp.. 104 Wash. 2d 722, 726, 709 P.2d 799
(1985), abrogated on other grounds by Blair v. Washington State University. 108
Wash. 2d 558, 740 P.2d 1379 (1987) (internal quotation marks and citation omitted).
The plaintiff in a disparate treatment lawsuit must present evidence that the
defendant's discriminatory motive was a substantial factor in its adverse
employment action. Mackav v. Acorn Custom Cabinetry. Inc.. 127 Wash. 2d 302,
No. 69694-7-1/8
310, 898 P.2d 284 (1995). An employee need not prove, however, that her
protected status was the determining factor in the employer's decision, jd.
When evaluating a summary judgment motion in an employment
discrimination case Washington courts use the burden-shifting analysis
announced in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973). Fulton v. Dep't of Social & Health Servs.. 169 Wash. App.
137, 148, 279 P.3d 500 (2012). A plaintiff has the initial burden to prove a prima
facie case of discrimination, jd. To do so, the plaintiff must present evidence from
which a jury may infer that an adverse employment decision was based on a
discriminatory criterion. Shelley v. Geren. 666 F.3d 599, 608 (9th Cir. 2012)
(citation omitted).9 The burden then shifts to the employer to rebut any inference
of discrimination by presenting evidence that the adverse action occurred for a
legitimate, nondiscriminatory reason. Fulton. 169 Wash. App. at 149. If an employer
does so, the presumption created by the plaintiffs prima facie case is rebutted
and the burden shifts to the employee to identify evidence that the employer's
stated reason is actually pretext for a discriminatory motive, jd, The case should
be submitted to a jury only when all three facets of the burden-shifting scheme
are met and the parties have produced sufficient evidence supporting reasonable
but competing inferences of both discrimination and nondiscrimination, jd.
Feedback Process
Adverse employment action — At the outset, Wiley's claim fails because
she does not show that the feedback process constituted an adverse
9Because WLAD "substantially parallels] Title VII," Washington courts "may look to
federal law for guidance." Washington v. Boeing Co.. 105 Wash. App. 1, 8, 19 P.3d 1041 (2000).
8
No. 69694-7-1/9
employment action. An adverse action is any tangible change in employment
status or terms and conditions of employment, such as "hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits." Burlington Indus. Inc. v. Ellerth, 524
U.S. 742, 761, 118 S. Ct. 2257, 141 LEd.2d 633 (1998). Wiley does not show
that the feedback process changed the terms or conditions of her employment.
As Microsoft points out, its response to the feedback was to assist Wiley in
preparing an action plan to address the criticism and offer to provide her an
executive mentor and coach. There is no evidence Microsoft suspended,
demoted, disciplined, or terminated her due to the feedback. She remained in her
position for months after receiving the feedback and then commenced medical
leave. Even though Wiley believed the feedback process was a setup to justify
her termination, an employee's fear of losing his or her job in the future is not a
materially adverse change in employment. McKenzie v. III. Dep't of Transp.. 31
Fed. Appx. 922, 926 (7th Cir. 2002); see also Page v. Johnson. 537 F. Supp. 2d
43, 61-62 (D.D.C. 2008) (subjective fear of future employment action does not
create triable issue of fact).
Wiley contends it is "undisputed that she had no job at Microsoft, and had
been replaced in her position with a male." Reply Brief at 5-6. She contends the
evidence supports a jury finding that the actions of Shaw, Haynes, Pritchard, and
Pilla succeeded in setting her up for failure, influencing the decisions to remove
her from her position, and predetermining her termination. She contends that
although she stayed with the company after filing suit, she was excluded from
emails and meetings and was shunned. But Wiley has neither alleged nor argued
9
No. 69694-7-1/10
based on these claims that she was constructively discharged from Microsoft.
When the trial court ruled on the motion for summary judgment, Wiley remained
employed by Microsoft as its director of marketing and communications.
Discriminatory animus - Wiley's discrimination claim also fails because
she does not prove a prima facie case of discrimination. As she describes it, the
crux of her claim is that "Microsoft allowed a group of male managers [Shaw,
Haynes, Pritchard, and Pilla] to proximately cause the destruction of her career;
and that they were motivated, at least in part, by gender bias...." Reply Brief at
1. But while the evidence shows these men had problems working with her,
reported their issues to Schofield, and made efforts to move her out of her role, it
fails to permit a reasonable trier of fact to find that they harbored gender bias
against her.
First, as to Haynes and Pritchard, Wiley points to no evidence specific to
them that they were motivated by gender animus. As to Shaw, Wiley asserts that
he was frustrated with her because she, a woman, stood up to him. She points
out that he was in the Marines for eleven to twelve years, during which time he
never had a woman who reported to him refuse a direct order. Such evidence
does not permit the inference that Shaw had gender bias. He testified that
everyone in the Marines was expected to follow a superior's orders, regardless of
gender, and that he never had anyone, male or female, refuse a direct order. As
to Pilla, Wiley points to an instant message he exchanged with another Microsoft
employee in which he made sexual comments about one woman and referred to
10
No. 69694-7-1/11
two otherwomen as "chicks."10 But "[s]tray remarks by non-decisionmakers or by
decisionmakers unrelated to the decision process are rarely given great weight,
particularly if they were made temporally remote from the date of decision."
(Citations omitted), Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509,
545, (3d Cir. 1992). The instant message took place over a year after the events
giving rise to this lawsuit and does not mention Wiley. Moreover, while Pilla
encouraged a coworker to go to Schofield with feedback about Wiley, there is no
evidence he was a decision maker in the feedback process or that any
discriminatory animus he had was a "substantial factor" in any adverse
employment action against Wiley.11
Wiley points to evidence that unidentified individuals in Corporate
Communications referred to her as "Mrs. No" and a "[b]itch."12 But there is no
evidence Shaw, Haynes, Pritchard, or Pilla did so. Nor is there evidence about
the persons who did—for instance, their gender or whether they played a role in
10 In the instant message between Pilla and hiscoworker on January 5, 2012, Pilla asked
ifthe latter spoke "'to the PR Week chick'"; the coworker later wrote that a certain female "is a
complete bitch" and Pilla responded "what happened, did she not blow you? I told her to blow
you. im so sorry"; and Pilla later referred to another female as a "chick." CP at 1279-82. This
exchange took place on office computers.
11 Wiley argues that Pilla's discriminatory mindset can be attributed to Microsoft, relying
on Staub v. Proctor Hospital. 131 S. Ct. 1186, 179LEd.2d 144 (2011). Wiley cites that case for
the proposition that discriminatory animus need not come from the employee's supervisor, and
that it is sufficient here that Pilla was a supervisor of some kind. Staub stands for the proposition
that ifa supervisor performs an act motivated by discriminatory animus that is intended by the
supervisor to cause an adverse employmentaction, and ifthat act is a proximate cause of the
ultimate employment action, then the employer is liable even ifthe supervisor did not make the
ultimate employment decision, id, at 1194. In Staub, the employee did attribute discriminatory
animus to his direct supervisor, unlike Wiley.
12 In Wiley's declaration, she stated that Pilla told herthat people in Corporate
Communications referred to her as "Mrs. No" or a "[b]itch." CP at 1330. Schofield testified that
Pilla told him people in Corporate Communications referred to Wiley as "Mrs. No" because she
was resistant to working with new ideas and new opportunities. CP at 1048.
11
No. 69694-7-1/12
the feedback process. Wiley also points to Shaw's testimony that he had heard
Corporate Communications referred to as an "old boys' club."13 This is not
evidence that Shaw, Haynes, Pritchard, or Pilla were motivated by gender
animus. Shaw testified that he had heard that term because "there was a set of
people who had been there a long time." CP at 1074. As Microsoft posits, the
reference as Shaw understood it was one regarding tenure. This is supported by
evidence that the group was headed by a woman—Shaw's supervisor—at the
time Shaw was hired. There is no evidence of the gender makeup of Corporate
Communications, nor is there evidence that Shaw, Haynes, Pritchard and Pilla
were motivated to maintain any gender dynamic. Furthermore, Wiley was not in
Corporate Communications.
Legitimate and non-discriminatory reason - Next, even if Wiley met her
burden of proving a prima facie case of discrimination, Microsoft asserts a
legitimate and non-discriminatory reason for addressing Wiley's performance in
2010. Based on feedback from her coworkers, Microsoft had legitimate reasons
to believe that she had performance issues that warranted addressing.
Pretext - Wiley does not show pretext. To show pretext, a plaintiff must
produce evidence that the defendant's reason is "unworthy of belief." Hines v.
Todd Pac. Shipyards Corp., 127 Wash. App. 356, 372, 112 P.3d 522 (2005). The
"focus of a pretext inquiry is whether the employer's stated reason was honest,
13 During hisdeposition, Shawwas asked, "Did itever come to your attention that any
woman in yourgroup regarded your group as an old boy's network or old boy[s'] club?" Shaw
responded, "When Ijoined the team, there was a set of people who had been there a long time,
so it was before Ijoined the company, and I had heard that term." CP at 1074.
12
No. 69694-7-1/13
not whether it was accurate, wise, or well-considered." Stewart v. Henderson,
207 F.3d 374, 378 (7th Cir. 2000).
Wiley contends pretext is shown because there is evidence that (1) she
received high reviews and accolades for 19 years before the events in question;
(2) the feedback is untrustworthy; and (3) she was replaced by K.K., a male she
alleges is from Corporate Communications and less qualified than her, even
though a female was her recognized successor. We conclude that this evidence
fails to create a genuine issue of material fact that Microsoft's reason for
addressing Wiley's performance was unworthy of belief. To support her first
point, Wiley cites Carlton v. Mystic Transp.. Inc.. 202 F.3d 129 (2nd Cir. 2000) for
the proposition that a sudden drop in performance ratings, spike in performance
criticism, or an employer's failure to properly document alleged deficiencies
before making the alleged performance-based decision, is circumstantial
evidence from which a jury may find pretext. But here, Microsoft documented
concerns about Wiley as far back as 2005, and such concerns were consistent
with the comments received in 2010.
Next, in contending the feedback is untrustworthy, Wiley asserts that "in
many instances" it was not the individual's own observations but instead reported
what other people said, pointing to (1) Schofield's testimony that one person told
him another named employee sought guidance from Wiley and did not receive it
and (2) Peterson's testimony that another person reported that an unidentified
person described Wiley as "bullying" and "threatening." CP at 1202. These
examples do not show that the feedback from seventeen people was unreliable.
Wiley also asserts that those who gave feedback collaborated, noting that two
13
No. 69694-7-1/14
people said she spent too much time "in the weeds." CP at 1204, 1206. But even
if the mere use of this term by two people showed any collaboration, it does not,
without more, undermine the reliability of the report. She also contends the
feedback from Heather Mitchell and Ann Paradiso is unreliable because Paradiso
had little interaction with Wiley and Mitchell (one of Wiley's direct reports) was
inconsistent. Wiley points out that a couple of months before Mitchell was
interviewed, she had written to a colleague that she was "totally in her [Wiley's]
camp defending her [Wiley] again." CP at 1229. But these circumstances do not
show their feedback is unreliable, and moreover they were only two of seventeen
individuals who gave feedback.
Finally, Wiley contends it is evidence of pretext that she was replaced by
K.K., a male she alleges is from Corporate Communications14 and less qualified
than her, even though a female, K.B., was her recognized successor. This
argument fails because, as noted, Wiley remained employed when K.K. was
hired to fill her role.15 Moreover, even assuming K.K. was less qualified than
Wiley, it does not necessarily follow that he was unqualified for the position or
was hired simply because he was a male. As for K.B., Wiley does not show that
she sought the position or, that if she did, K.K. was less qualified than her. In any
event, K.K.'s being hired does not show that Microsoft's reason for its actions
14 Schofield's declaration states that K.K. did notwork in Corporate Communications with
Shaw. The only evidence to which Wiley points to dispute this, does not show that K.K. was in
Corporate Communications.
15 To the extent Wiley argues it is evidence ofdisparate treatment thatshe was replaced
by a male, she must, to establish a prima facie case, "show that she: (1) is a member of a
protected class; (2) was discharged; (3) was doing satisfactory work; and (4) was replaced by a
person of the opposite sex or otherwise outside the protected group." Domingo v. Boeing
Employees' Credit Union. 124 Wash. App. 71, 80, 98 P.3d 1222 (2004).
14
No. 69694-7-1/15
when it came to Wiley—the negative feedback from a number of individuals—is
unworthy of belief.
Promotion and Pay
Wiley claims gender disparity in her advancement and pay as compared
to that of similarly situated males. She claims she should have been promoted
from a Level 66 (which she attained in 2007) to a Level 67 or higher at some
unspecified time and obtained greater compensation accordingly.
To establish a prima facie case of disparate treatment, a plaintiff must
show (1) she belongs to a protected class, (2) she was treated less favorably in
the terms or conditions of employment than a similarly situated, nonprotected
employee, and (3) she and the comparator did substantially the same work.
Domingo, 124 Wash. App. at 81. The plaintiff and the comparators must be
similarly situated in all material respects. Moran v. Selig. 447 F.3d 748, 755 (9th
Cir. 2006). They should have the same supervisor and be subject to the same
standards. Kirbv v. City of Tacoma, 124 Wash. App. 454, 475 n.16, 98 P.3d 827
(2004).
Wiley's claims fail because she cannot show she and the comparators
were similarly situated in all material respects. Wiley points to four comparators:
B.C., S.C, D.G., and J.O.16 These males and Wiley were not in similar positions
with similar responsibilities and were not doing substantially the same work.
None of the comparators were marketing professionals like Wiley. B.C. was a
director of intellectual property strategy; S.C. a senior director of product
16 Below, Wiley pointed to P.F. and T.H. in addition to these four. Onappeal, she makes
no mention of P.F. or T.H.
15
No. 69694-7-1/16
planning; D.G. a general manager of technology policy; and J.O. a director of
program management.17 Wiley and the comparators were also not evaluated by
the same managers using the same standards. B.C. and J.O. reported to
Schofield, but they were at a different level than Wiley, had B.S. degrees
(required for their roles, unlike for Wiley's), and had technical positions focusing
on technology itself rather than marketing. S.C. and D.G. did not report to
Schofield, and both had Ph.D. degrees (computer science and theoretical
chemistry and physics, respectively), compared to Wiley's B.A. degree.
Wiley points to the comparators' review scores, how long they were at
Microsoft, their levels, and their salaries, and then contends that based on her
review scores and length of employment she should have been promoted and
received a higher salary. But these considerations do not go to whether the
comparators were similarly situated to her in all material respects, did
substantially the same work, or were subject to the same standards. Wiley also
offers testimony that she interfaced regularly with the comparators, that all of
them had to engage in collaboration, and that all of their jobs involved "research
projects that were highly technical, and required a deep understanding of the
technologyf.]" CP at 1331. Wiley cites no authority to show that employees are
similarly situated for such reasons. Finally, she contends she should have been
promoted to Level 67 or higher because she was identified as "high potential" in
17 Wiley's primary duties involved PR and media relations, while B.C.'s involved
technology transfer from research to end product; S.C.'s involved planning for Windows Mobile
and identifying gaps in intellectual property and product portfolio; D.G.'s involved appraisal of
technology and technical liaising to the external community; and J.O.'s involved managing a team
that facilitates technology transfer from research to product.
16
No. 69694-7-1/17
2008-2009. She contends this meant Microsoft expected she would receive two
promotions within three to five years and notes she was at Level 66 for three
years. But she offers no evidence of similarly situated males who were identified
as "high potential" and were promoted in comparable periods.18
Thompson Claim
"Employer obligations may...arise independent of traditional contract
analysis when the employer creates an atmosphere of job security and fair
treatment with promises of specific treatment in specific situations and the
employee relies thereon." Gaglidari v. Denny's Restaurants. Inc.. 117 Wash. 2d 426,
433, 815 P.2d 1362 (1991) (citing Thompson. 102 Wash. 2d at 230). "'[A]n
employee seeking to enforce promises that an employer made in an employee
handbook must prove: (1) whether any statements therein amounted to promises
of specific treatment in specific situations; (2) if so, whether the employee
justifiably relied on any of these promises; and, finally, (3) whether any promises
of specific treatment were breached.'" Bulman v. Safeway. Inc., 144 Wash. 2d 335,
340-41, 27 P.3d 1172 (2001) (citing Thompson, 102 Wash. 2d at 233). These
elements present issues of fact, but may be decided as matters of law if
reasonable minds could not differ. Korslund v. Dvncorp Tri-Cities Services. Inc.,
156 Wash. 2d 168, 185, 125 P.3d 119 (2005).
Wiley alleges Microsoft specifically promised employees that if they refuse
to violate corporate policy, it would not permit retaliation against them, and that
18 Moreover, the document on whichWiley relies states that "being identified as a HiPo is
not to be used as ... [a]n automatic gateway or implied guarantee to a future promotion"). CP
1024; see ajso CP 379-82 ("There are no guarantees ... that you would remain a high potential
person year over year, no guarantees that you would be promoted to the next band.").
17
No. 69694-7-1/18
she relied on this promise to her detriment when she refused to violate corporate
policy by speaking to the media about patent applications. As evidence that
Microsoft made this promise, Wiley points to:
(1) The Whistleblowing Reporting Procedure and Guidelines (in the
electronic employee handbook ("Handbook") available through the
"HRWeb" within the Microsoft intranet system, CP at 793-94), which
states:
Microsoft needs your assistance to ensure that it fully complies
with all laws, company guidelines, and standards of ethical
conduct....Microsoft will not tolerate retaliation against any
employee for making a good-faith report, cooperating with an
investigation under this procedure or applicable law, or refusing
to participate in activities that violate applicable laws, company
guidelines, or standards of ethical conduct. Any employee who
engages in retaliation shall be subject to disciplinary action up to
and including termination.
CP at 776.
(2) The Microsoft Standards of Business Conduct policy (not part of the
Handbook, but accessible through a separate website—the "LCA
[Legal and Corporate Affairs] Web." CP at 1329), which states:
All Microsoft employees are responsible for understanding and
complying with the Standards of Business Conduct, applicable
government regulations, and Microsoft policies.
Openness, Honesty, and Respect: In our relationships with each
other, we strive to be open, honest, and respectful in sharing
our ideas and thoughts, and in receiving input.
The Standards of Business Conduct and the Business Conduct
and Compliance Program are endorsed by and have the full
support of the Microsoft Board of Directors. The Board of
Directors and management are responsible for overseeing
compliance with and enforcing the Standards of Business
Conduct.
Microsoft will not tolerate any retribution or retaliation taken
against any employee who has, in good faith, sought out advice
or has reported a possible violation.
CP at 1340-44.
18
No. 69694-7-1/19
(3) The Open Door policy (also part of the Handbook).
You are encouraged to air creative ideas, issues, or
concerns....It is your responsibility to ask about things you do
not know or understand, as well as to make suggestions that
could improve any part of the company or its operations.
CP at 1338.
We conclude the trial court properly dismissed this claim. Initially, the
"Open Door" policy contains no non-retaliation language. And both the
whistleblowing guidelines and the Standards of Business Conduct contain
express disclaimers.19 Generally, employers are not bound by statements in
employment manuals if they "state in a conspicuous manner that nothing
contained therein is intended to be part of the employment relationship and are
simply general statements of company policy." Thompson, 102 Wash. 2d at 230.
19 First, the Handbook contains disclaimers. When an employee clicks "Read the
Employee Handbook," the following statement appears:
Disclaimer
HRWeb contains only general information and guidelines. It does not create any
contractual rights or impose legal obligations on Microsoft or its subsidiaries, nor
does it guarantee specific treatment in any given situation. HRWeb is updated
frequently and is subject to change without prior notice. HRWeb is intended
primarily as a general information resource for employees of Microsoft.
Information and guidelines may vary by country and by subsidiary. Accordingly,
employees of Microsoft subsidiaries should check with their HR representative
for clarification.
CP at 752. To access the Handbook, the employee must sign into it. An employee signing into
the Handbook views and agrees to the following statement, which provides in relevant part:
At-Will Employment Not Modified:
This handbook...contain[s] general guidelines only. [It is] not intended and shall
not be read to create any express or implied promise or contract for employment,
for any benefit, or for specific treatment in specific situations. Do not rely on any
contrary oral or written statements, practices or conduct of Microsoft or its
employees. Your employment relationship with Microsoft is at-will.
CP at 752-53. Wiley admits she was familiarwith the Handbook's disclaimers, which she
acknowledged dozens of times in the last eleven years of her employment.
The Standards of Business Conduct also contains a disclaimer. It states:
The Standards are not intended to and do not create an employment contract,
and do not create any contractual rights between Microsoft and its employees or
create any express or implied promise for specific treatment in specific situations.
CP at 1342.
19
No. 69694-7-1/20
See also Quedado v. Boeing Co., 168 Wash. App. 363, 374, 276 P.3d 365, rev.
denied, 175 Wash. 2d 1011, 287 P.3d 594 (2012) ("[A]n employer can disclaim what
might otherwise appear to be enforceable promises in handbooks or manuals or
similar documents.") (citing Swanson v. Liquid Air Corp., 118 Wash. 2d 512, 526,
826 P.2d 664 (1992)).
"A disclaimer may be negated by later, inconsistent representations by the
employer." Quedado. 168 Wash. App. at 374. Wiley contends the disclaimers here
were negated by Microsoft's inconsistent representations and practices. She
points to the annual trainings she received on the Standards of Business
Conduct, during which, she states in her declaration, she was "again and again
told to 'speak up' and raise concerns about laws, regulations, company policies
and/or ethics, and specifically promised [she] would not be retaliated against for
doing so." CP 1329. But her statement shows only that the Standards of
Business Conduct were reiterated to her at trainings. She presents no evidence
she was told, at trainings or otherwise, to disregard the disclaimer and that
Microsoft intended to make promises of specific treatment in specific situations
with regard to the non-retaliation statements.
Furthermore, we agree with Microsoft that Wiley's claim fails because she
identifies no Microsoft policy prohibiting comment on patents.20 Thus, she cannot
show she was acting as a whistleblower, to invoke the non-retaliation policy and
demonstrate a breach by Microsoft. Wiley contends that regardless of the
existence of such a policy, she had a good-faith belief that what Shaw wanted
20 As previously noted, Mundie did not testify that Microsoft does not comment on
patents, only patent applications in prosecution.
20
No. 69694-7-1/21
her to do would violate company policy. But the non-retaliation language in the
whistleblowing policy and Standards of Business Conduct pertains to good-faith
seeking of advice or reports of violations. Wiley did neither; she simply told Shaw
she wanted to decline on the KUOW story. Even if there was a policy prohibiting
discussion of patents, Shaw did not ask Wiley to violate it; he told her a
conversation could be conducted about the technology in question without talking
about patents.
Wiley's gender discrimination and Thompson claims were properly
dismissed on summary judgment.
Affirmed.
WE CONCUR:
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21