Delima v. Home Depot U.S.A., Inc. (616 F. Supp. 2d 1055, 2008)

ORDER

HAGGERTY, Chief Judge.

Magistrate Judge Jelderks issued a Findings and Recommendation (F & R) [111] in this action, recommending that defendant’s motion for summary judgment [52] should be GRANTED in part and DENIED in part, GRANTING plaintiffs motion to strike [72] and GRANTING in part and DENYING in part defendant’s motions to strike [88, 104]. On March 31, 2008, the matter was referred to this court. When a party objects to any portion of a Findings and Recommendation, the district court must conduct a de novo review of that Findings and Recommendation. 28 U.S.C. § 636(b)(1)(B); McDonnell Douglas Corp. v. Commodore Bus. Mach. Inc., 656 F.2d 1309, 1313 (9th Cir.1981).

The Findings and Recommendation provided a thorough analysis of the facts. This factual analysis is not objected to by petitioner, and need not be repeated here.

Defendant makes two objections to the F & R. First, defendant argues that plaintiffs wage claim pursuant to O.R.S. § 652.220 is time-barred. Second, defendant argues that plaintiffs Title VII wage claim is time-barred.

In finding that plaintiffs state wage claim pursuant to O.R.S. § 652.220 was not time-barred, the F & R concluded that the statute of limitations under O.R.S. § 659A was applicable, and therefore plaintiff could recover under Oregon statutes for any unlawful discrimination on her compensation after December 10, 2003 (one year prior to the filing of her BOLI complaint). Defendant objects, and argues that O.R.S. § 652.230 contains the relevant statute of limitations. O.R.S. § 652.230 provides:

(1) Any employee whose compensation is at a rate that is in violation of ORS 652.220 shall have a right of action against the employer for the recovery of: (a) The amount of unpaid wages to which the employee is entitled for the one year period preceding the' commencement of the action; and [liquidated damages and attorney’s fees].

O.R.S. § 652.230. Instead of creating a separate statute of limitations for claims brought pursuant to O.R.S. § 652.220, however, O.R.S. § 652.230 merely places a limitation on the period for which damages may be recovered. This court adopts the conclusion of the F & R and finds that plaintiffs claim under O.R.S. § 652.220 is not time-barred.

Defendant argues that plaintiffs Title VII wage claim is barred under Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007). On this issue, the F & R found that:

though the applicable statute of limitations precludes plaintiffs recovery under Title VII for any pay decisions implemented before February 13, 2004, [defendant’s] motion for summary judgment on plaintiffs Title VII pay claim should be denied because material issues of fact exist as to whether pay raises [defendant] implemented for any similarly situated male employees after that date reflected discrimination in favor of that male employee.

F & R p. 46. Defendant asserts that the F & R erred by holding that pay raises awarded to other employers restarted the 300-day statute of limitations on her Title VII wage claim. This court agrees with the F & R’s conclusion that “there is nothing in the Ledbetter decision that precludes the statute of limitations from starting to run again if the employer subsequently discriminates, on the basis of gender, in establishing or raising the pay of another employee.” F & R p. 46.

The court has given the file of this case a de novo review, and has also carefully evaluated the Findings and Recommendation, the objections, and the entire Record. The Judge’s reasoning and recommendations are sound, correct, and entitled to adoption.

CONCLUSION

This court adopts the F & R[111], Accordingly, defendant’s motion for summary judgment [52] is GRANTED in part, and DENIED in part, as set forth in the F & R.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

JELDERKS, United States Magistrate Judge:

Plaintiff Nancy Delima brings this employment related action against defendant Home Depot U.S.A., Inc., dba the Home Depot (Home Depot). Defendant Home Depot moves for summary judgment, and both partiés move to strike certain material related to that motion. Defendant’s motion for summary judgment should be granted in part and denied in part as set out below. Plaintiffs motion to strike is granted, and defendant’s motion to strike is granted in part and denied in part as discussed below.

FACTUAL BACKGROUND

On August 25, 2001, defendant Home Depot hired plaintiff Delima to work as a night freight associate at its store in Troutdale, Oregon. In that position, plaintiff was paid $10.00 per hour and worked on a team that received freight, stocked shelves, and prepared the store to do business on the following day.

During her first week on the job, plaintiff received a “new employee” orientation package which included defendant Home Depot’s policy prohibiting harassment and discrimination, and instructions to report inappropriate conduct. Plaintiff also received training on Home Depot’s safety policies, and was told that she would be warned or terminated if she violated those policies. The policies included a “banner barricade” policy requiring employees to use barricades to block customers or employees from entering aisles where pallets of merchandise are being placed overhead, and a policy prohibiting the use of a “rabbit button” that increases the speed of certain equipment.

Home Depot’s “Code of Conduct” sets out guidelines for disciplining employees for safety violations, and states that managers who fail to enforce its provisions may be terminated. Plaintiff knew that supervisors could be held responsible for safety violations committed by associates.

Rick Baird worked as the Troutdale Home Depot Human Resources Manager (HR Manager) from August, 2002, until April, 2004. In that position, Baird was responsible for setting the pay rate for new employees at the Troutdale store. Pay rates were set within ranges for various positions. According to his deposition testimony, in setting an employee’s pay, Baird considered the new employee’s existing skills, training, and experience, prior pay history, the pay of existing employees who held the same position, the rate of pay requested by the new employee, and the urgency of filling the position.

In January, 2002, Home Depot adopted written Pay Administration Guidelines concerning wage policies and practices. Home Depot determines pay increases based upon written performance reviews prepared by an employee’s supervisor. The reviews include narrative evaluations and rate “overall performance” on a scale ranging from “outstanding” to “improvement required”; rate “leadership” from “exemplary” to “deficient”; and rate “potential” from “high” to “placement issue.” Employees receive two written performance evaluations a year, and are considered for pay raises every February, based upon those reviews.

When Home Depot employees transfer from one store to another in Oregon, they are generally paid at the same rate as they earned at the store from which they transferred.

When a Home Depot employee is promoted, the new wage rate is based upon the employee’s current pay, job experience, skill and knowledge, and documented performance. Pay increases for promotions generally range from 6% to 12%.

Before she began working for Home Depot, plaintiff worked for Hollywood Video from 1990 until 1994. She earned $9.23 per hour in that position. She next worked for Target as a stacker for 13 months beginning in August, 1995. Plaintiff earned $6.75 per hour in that position. After that, plaintiff did not work outside the home until she was hired by Home Depot in August, 2001.

When she filled out an application to work for Home Depot, plaintiff did not indicate what rate of pay she desired, because she intended to negotiate her starting wage. Plaintiff was told that the night freight position she accepted would require her to operate “heavy” equipment, and that the starting rate of pay would be around $10 per hour. Plaintiff had not operated heavy equipment before, and was trained and licensed to operate this equipment within the first week of her employment.

Plaintiff received a generally positive performance review on October 5, 2002, and received a $.65 per hour raise two days later.. According to her affidavit submitted in support of her opposition to the motion for summary judgment, plaintiff was satisfied with that raise because Home Depot managers misrepresented that the greatest raise for any Home Depot associate was $.75 per hour.

Home Depot hired Ross Sears, a male employee, within a few days of hiring plaintiff. Both plaintiff and Sears were paid $10.00 per hour initially. In October, 2002, when plaintiffs pay was increased to $10.65 per hour, Sears’ pay was increased to $11.50 per hour.

On November 19, 2002, Baird promoted plaintiff to the night freight team supervisor position and increased plaintiffs pay to $12.00 per hour. This amounted to a 12.67% raise. Plaintiffs supervisor recommended the promotion.

In her position as night freight supervisor, plaintiff was responsible for scheduling associates, drafting performance summaries, disciplining associates who violated safety policies, scheduling freight deliveries and signing for goods, ensuring that freight was unloaded and that overstocked merchandise was stored overhead, and for having the store clean by the time it opened.

On February 3, 2003, plaintiffs pay was increased from $12.00 per hour to $12.75 per hour. At the time of the raise, plaintiff received a performance review that rated her overall as a “performer,” rated her leadership as “acceptable,” and assessed her potential at the “grow in position” level. Plaintiff complained about the raise to Baird and Patrick Patterson, the assistant store manager. Patterson told her that it was the best he could do at the time.

Ken Meno was hired as the night operations manager at Home Depot’s Troudale store in June, 2003. Plaintiff has testified that she complained to Meno about her raise, and that she told Meno that she was given an insufficient raise because of her gender. Meno was replaced by Mark Yamashita as the night operations manager in January, 2004.

In a performance review dated July 31, 2003, Meno assigned plaintiff an overall performance rating of “performer,” rated plaintiffs leadership as “acceptable,” and rated her potential as “grow in position.” Meno had initially rated plaintiffs overall performance and leadership higher, and revised the marks downward based upon the advice of Baird and Patterson.

In early February, 2004, Meno was reassigned to a merchandising Assistant Store Manager position. In a performance evaluation dated February 2, 2004, Meno assigned plaintiff the same performance ratings he had assessed in plaintiffs earlier evaluation. According to Meno’s declaration submitted in support of plaintiffs opposition to the motion for summary judgment, while Meno was an assistant manager, the store manager required that he “downgrade [plaintiffs] performance reviews two levels from Outstanding to Performer.” Meno adds that he has no doubt “that these performance reviews were downgraded because of [plaintiffs] gender,” and that he “was never required to downgrade any other male department head evaluations.”

At the same time she received the February, 2004 performance evaluation, plaintiff received a 13% pay increase, which raised her pay from $12.75 per hour to $14.40 per hour. Baird testified that this raise was unusually high, and that plaintiff had been “lower in the pay band” of similar managers before the raise.

During the time in which plaintiff worked as a freight team department supervisor, 25 other employees at the Troutdale Home Depot worked at times as supervisors in the various Home Depot departments. Home Depot asserts that, including plaintiff, six of these supervisors were female, and that three of the female supervisors earned more than plaintiff. Home Depot asserts that the other two females, who earned less than plaintiff, became supervisors nearly two years after plaintiff was promoted. Plaintiff disputes this assertion, noting that, according to documentation Home Depot submitted to the Oregon Bureau of Labor and Industries (BOLI), the Troutdale Home Depot employed only two other female supervisors while plaintiff worked for Home Depot as a supervisor. Plaintiff adds that both of these females were paid more than she was because they transferred to the Troudale store from other stores at a higher rate of pay.

Some male supervisors were paid more than plaintiff, and some were paid less. According to paragraph 10 of the declaration of Alisa Grandy, Regional Human Resources Manager for Home Depot’s Pacific Northwest Region, other department supervisors who earned more than plaintiff did so because of legitimate factors such as greater qualifications, education, work experience, and job skills; higher wage pay while working for previous employers; a higher starting wage with Home Depot than plaintiffs; longer tenure with Home Depot; and higher evaluations under Home Depot’s merit system, based upon factors unrelated to gender. For the reasons briefly noted in the discussion section below, plaintiffs motion to strike these assertions is granted.

Home Depot employs both day and night assistant store managers (ASMs). Plaintiff was interested in being promoted to a night assistant store manager position. When her deposition was taken, plaintiff stated that she applied for the night operations ASM position after Meno left in January, 2004, and was replaced by Yamashita. Home Depot has submitted documents indicating that plaintiff did not apply for the ASM position, and asserts that plaintiff testified that she told Meno before he left that, though she was interested in his position, she knew she did not have the required experience. Plaintiff contends that the documents Home Depot cites should be stricken because they are not properly authenticated and are hearsay. She further asserts that, though she did tell Meno that she lacked the required experience for the ASM position, she did so when Meno first became her supervisor, not when he later left.

The transcript of plaintiffs deposition supports plaintiffs assertion as to the timing of her remark that she lacked the experience required for the ASM position: When asked when she first expressed an interest in the “night ops job,” plaintiff said that she “expressed it to Ken Meno when he first came in,” and that she knew she “didn’t have the experience at the time” because she still needed training.

Yamashita was selected for the night ASM position in January, 2004, when Meno left. He had been a freight supervisor for 26 months when he was selected. Yamashita had been named Night Operations Manager of the Year in 2002, and had received very positive performance evaluations in 2003.

Yamashita left the night ASM position in August, 2004. Plaintiff applied for the position, which was not filled. Home Depot asserts that the position remained open because of budgetary restrictions. Plaintiff contends that budgetary restrictions did not prevent Home Depot from filling the position.

Home Depot offers Department Supervisor Training (DST) to employees who are interested in becoming Assistant Store Managers. This 36-hour training course is offered a few times a year at Home Depot’s offices in Tigard.

Plaintiff requested DST training. Home Depot asserts that plaintiff would not make herself available for training during the day, when it was offered, and that it arranged for plaintiff to take that training by herself after her shift at the Troutdale store, with Meno available to answer questions.

Plaintiff completed one unit of DST training. Home Depot asserts that plaintiff was offered another DST class “on short notice but declined to participate.” Plaintiff denies that she would not make herself available during the day for DST training, and asserts that Baird gave her a two-day oral notice of the training, but declined to schedule her for training. She further asserts that “male employees were placed on a schedule for DST training, with two or more weeks notice.”

Home Depot asserts that on April 24, 2003, plaintiff was disciplined and received a “final counseling” for violating its “banner barricade” policy and for using the “rabbit switch” while operating machinery. A document in the record titled “Discipline Process Tracking” notes a violation of “ignoring banner barrier requirements during initial open hours,” and “running ERJ with rabbit button on sales floor.” . The document indicates that Baird conducted a “final counseling session,” and that plaintiff was concerned that the next violation would result in her termination. Plaintiff contends that she never received any disciplinary notices for safety issues or received a performance evaluation that indicated that she had any safety issues. In her declaration submitted in support of her opposition to the motion for summary judgment, plaintiff asserts that she never saw the document in question before this litigation, and that the “counseling session” referenced in that document did not occur.

Baird has testified that plaintiff had a number of performance problems, including “a sustained problem with attendance and with availability for any kind of activities outside of her very rigidly scheduled shift which was a graveyard shift.” He added that plaintiff had problems with “punctuality,” and “availability for shifts outside of her normally scheduled shift.” Baird testified that plaintiff “would never attend any store team meetings,” and that “there were a number of safety issues” involving plaintiff.

In July, 2004, Ryan Pieratt became the Store Manager of the Troutdale Home Depot. Pieratt told plaintiff that she needed experience on the day shift, and has testified that plaintiffs chances for a promotion were hurt because she would not work days.

The record before the court includes a copy of a-Home Depot document entitled “Department Supervisor to Assistant Manager,” which describes the characteristics of a “Department Supervisor ready for promotion.” The required characteristics listed include customer and leadership skills, a good safety record, and the ability to enforce safety policies.

As noted above, Yamashita became the night operations ASM in January, 2004. In that position, he worked closely with plaintiff. Plaintiff has testified that Yamashita was a “practical joker” who made jokes at the expense of her and others.

Plaintiff went on maternity leave several months after Yamashita became the night operations ASM. When she returned from maternity leave, plaintiff arranged with Ryan Pieratt, the store manager, to start her shifts at a later time for a few months. According to plaintiffs declaration, though these later starts had been agreed upon, shift meetings that she had formerly run as a Night Supervisor were rescheduled from later in the shift to immediately at the beginning of the shift after she returned.

Yamashita met with the freight crew at the start of the shift, and would give plaintiff a hard time if she arrived during the meeting. Plaintiff testified that Yamashita knew that she would be late because of her arrangement with the store manager, and that he would “put her down” in front of the crew with comments about their supervisor being late again, and not setting an example.

When plaintiff returned from maternity leave, Yamashita arranged for plaintiff to take breaks in the training room during her shift to express breast milk for her baby. Plaintiff testified that, on three occasions, Yamashita used the overhead page system to tell other employees to report to the training room while she was expressing milk, and rattled the door handle himself and sniggered several other times while she was in that room. She testified that no other employees entered the room, and that she considered Yamashita’s conduct a joke the first time he made the announcement on the page system. Plaintiff also testified that Yamashita made comments about bringing cereal for the pumped milk that she stored in the managers’ refrigerator. According to her declaration, plaintiff reported Yamashita’s conduct to Meno, who in turn reported the conduct to the store manager. According to Meno’s declaration, Pieratt ignored Meno’s reports concerning Yamashita’s treatment of plaintiff, and no corrective action was taken. Meno also states that Pieratt treated plaintiff less favorably than male employees and was not as responsive to plaintiffs complaints about issues with subordinates. Meno states that Pieratt characterized plaintiffs complaints as “whining,” and told him that he was frustrated at having to deal with “women and all their issues.”

Plaintiff complained to Baird that Yamashita was managing the freight team and usurping her managerial authority. She also complained to him about what she considered to be Yamashita’s unsafe operation of equipment. After Baird spoke with him about these complaints, Yamashita told the freight team that he was very upset that someone had complained about him to management. Plaintiff testified that Baird told her he would not tell Yamashita who had complained, but that Yamashita saw plaintiff in Baird’s office just before he told the freight crew that he was upset about the complaints. She further testified that Yamashita told the freight crew that whoever had complained was “in for it” because he did not like “back stabbers.” She added that some members of the freight team told Yamashita that he deserved the complaints because of his conduct. Plaintiff asserts that, after seeing her talking with Baird shortly before he was reprimanded, Yamashita put “two and two together,” and subsequently assigned her “cruddy jobs.”

Plaintiff testified that Home Depot later terminated Yamashita after he allowed the freight team, including herself, to play football during a lunch break. She testified that she had understood that “horseplay” was a violation of the work conduct rules, and that an associate had been injured while playing football. In his declaration submitted in support of plaintiffs opposition to the motion for summary judgment, Jeff Pulieella, a Department Supervisor during this period, stated that Pieratt told him that Yamashita was terminated because he falsified documents, and would not have been terminated for the safety violations. Pieratt has testified that Yamashita was terminated both for safety violations and for falsifying documents.

Pulieella has submitted a declaration stating that, though he was paid nearly $2 per hour more than plaintiff while he and plaintiff were working as department supervisors, they did the same work and held the same title, and there was nothing in his experience or education that justified a difference in their pay. In addition, Pulicella stated that Pieratt offered him a fully flexible schedule, and assured him that he could come in late and leave early as often as he needed to without affecting his pay rate or opportunities for advancement. Pulieella also stated that, shortly after Pierrat became a store manager, he told Pulieella that he “would be getting rid of’ plaintiff, and that, “as a woman,” plaintiff “could not handle the guys on the freight team.”

On November 9, 2004, Randy Kerr, a Home Depot loss prevention specialist, observed Kamil Samad, an employee on the night freight team, disregard the banner barricade policy. After Kerr reported this conduct, Pieratt terminated Samad. When Pieratt told plaintiff that Samad would be terminated for the safety violation, plaintiff told him it was “bullshit” and walked out. Plaintiff has testified that this exclamation reflected her opinion that Samad “was the hardest working person on the team,” and that she had been trying to have four or five other employees terminated because of their behavior, work ethics, and attendance. She added that she walked out after expressing her displeasure because Samad was entering the room and “they” wanted her out “while they terminated her.” According to plaintiffs declaration, Pieratt was aware that the violations for which Samad was terminated had occurred on other shifts as well, but that the safety policies were only enforced “when minorities were involved.” Plaintiff adds that she was the only “minority” on the night freight team after Samad was terminated, and that the “only other woman on the freight team quit” on the day plaintiff was terminated.

On November 11, 2004, plaintiff was called into a meeting with Pieratt and Amy McDonald, who had begun working as the Troudale Home Depot HR manager in September, 2004. Pieratt asked plaintiff why she had made the “bullshit” comment. Plaintiff told him that others had committed safety violations far more serious than the one for which Samad was terminated. Pieratt has testified that he then terminated plaintiff after talking with Samad and finding that “they did not follow standard operating procedures at night with regard to safety” and “[a]fter discussing with [plaintiff] and finding out that that was true....”

In his declaration, Pulieella states that from Peirrat’s statements, it was clear that plaintiff would not have been terminated if she was not female. He also states that Pieratt told him that he had been aware that various departments violated the banner barricade policy during the night shift, and that he did not enforce the policy “until some time after [plaintiff] was terminated from employment.” In his declaration, Meno states that he is unaware of any time during his employment with Home Depot when “any supervisor or manager ... was terminated for disagreeing with a personnel decision or for condoning a safety violation.” He adds that he had “personally challenged a termination decision of an associate for safety,” and was not terminated.

Meno was plaintiffs direct supervisor beginning in June, 2003. Meno states that he considered plaintiff an exemplary employee whose performance exceeded that of any other department supervisor he had supervised. Meno states that plaintiff was able to perform both the Assistant Manager duties and the duties of her own position when Meno was not at the store. Meno opines that, as of February, 2004, plaintiff was fully capable of performing the Night Operations Manager duties. He also opines that, as of July 31, 2003, plaintiff was “on track” to be promoted to the Assistant Store Manager position by the end of July, 2004.

Meno’s declaration further states that, when he became her supervisor, Meno realized that plaintiff was not being treated fairly, compared to her male counterparts, in several areas. As examples, Meno cites plaintiffs work on the night shift without a salaried manager present, Home Depot’s failure to provide plaintiff Department Supervisor Training (DST), and plaintiffs rate of pay, which Meno characterizes as substantially lower than that of her male counterparts in the Troutdale Home Depot and at other Home Depot stores in the district. Meno states that he made several unsuccessful attempts through management to schedule plaintiff for formal DST classes, and finally obtained the course materials for plaintiff to work through on her own. Meno also states that he compared plaintiffs rate of compensation to that of her male counterparts in conversations he had with Joyce Snead, Home Depot’s District Manager. Meno states that, though he raised the issue of the disparity between plaintiffs pay and the pay of male employees with store managers, the human resource manager, the district manager, and two employee relations managers, plaintiff did not receive a pay increase for more than eight months.

From November, 2002, through February, 2004, plaintiff was the lowest paid department supervisor at the Troutdale Home Depot. Baird, who testified that plaintiff was “clearly” the lowest paid department supervisor, said that plaintiffs pay was based upon her performance. After Meno complained that plaintiff was being paid less than comparable male employees, Baird asked for documentation of her performance that would justify higher pay. As noted above, Baird instructed Meno to downgrade the performance evaluation that Meno prepared.

Before bringing this action, plaintiff filed administrative complaints of gender-based discrimination with the Oregon Bureau of Labor and Industries (BOLI) and the Equal Employment Opportunity Commission. In a Notice issued on December 9, 2005, BOLI stated that it had found no substantial evidence that Home Depot had retaliated against plaintiff based upon her alleged opposition to unlawful discrimination, and had found substantial evidence of “disparate treatment, termination” based upon plaintiffs gender.

PLAINTIFF’S CLAIMS

Plaintiff brings several state and federal claims of gender-based discrimination.

The first claim, brought pursuant to Title VII, alleges that Home Depot discriminated against plaintiff in the terms and conditions of her employment, and terminated her, because of her gender. This claim alleges that plaintiff suffered lost wages and benefits, and continues to suffer these losses. Based upon this claim, plaintiff seeks recovery of “future lost wages and benefits and lost earning capacity in amounts to be determined at trial.”

The second claim, which is also based upon Title VII, alleges that Home Depot unlawfully discriminated against plaintiff and terminated her “because she opposed defendant’s practice of discriminating against her on the basis of her sex in the terms and conditions of her employment.”

The third claim is brought pursuant to the federal Equal Pay Act, 29 U.S.C. § 206(d)(1). This claim alleges that Home Depot did not pay plaintiff wages that were equal to those paid to its comparable male employees.

The fourth claim alleges that Home Depot violated Or.Rev.Stat. § 652.220 by discriminating “between the sexes in the payment of wages for work of comparable character, the performance of which requires comparable skills.” In the alternative, or in addition, this claim alleges that Home Depot “paid plaintiff wages at a rate less than that at which it paid male employees for work of comparable character, the performance of which requires comparable skills.” This claim seeks recovery of allegedly unpaid wages and liquidated damages pursuant to Or.Rev.Stat, § 652.230(2).

The fifth claim alleges that plaintiffs termination was wrongful under Oregon law because it “was motivated in substantial part in response to and in retaliation for plaintiffs exercise of her important rights as an employee to be free from retaliatory and discriminatory treatment based on her protected classifications.” This claim further alleges that adequate remedies do not exist under plaintiffs statutory claims for relief. Plaintiff seeks recovery of punitive damages, as well as attorney fees and costs, on this claim.

The sixth claim alleges that Home Depot violated Or.Rev.Stat. § 659A.030 by discriminating against plaintiff in the terms and conditions of her employment and by terminating plaintiff oh 'the basis of her gender.

The seventh claim alleges that Home Depot violated Or.Rev.Stat. § 659A.030 by retaliating against plaintiff in various ways based upon her opposition to gender-based discrimination.

DISCUSSION

I. Motions to Strike

Before analyzing defendant’s motion for summary judgment, I will briefly address the parties’ motions to strike.

A. Plaintiffs motion to strike

Plaintiff moves to strike the assertion, set out in Alisa Grandy’s declaration, that the higher pay of all department supervisors who were paid more than plaintiff reflected legitimate, factors such as greater qualifications, education, work experience and job skills, higher wages from previous employers, longer tenure, or higher evaluations. Plaintiff contends that Grandy is not competent to present evidence as to the basis for the pay decisions in question because she was not involved in those decisions.

I agree. Though it appears that Grandy is qualified to present evidence about Home Depot’s wage policies and the factors that its managers are supposed to consider when establishing pay rates for employees, Grandy was not involved in the particular pay decisions at issue in this litigation. In the absence of evidence that she participated in the decisions, Grandy’s assertion that all the decisions were based upon legitimate factors is not based upon the requisite personal knowledge. Home Depot’s contention that paragraph 10 of Grandy’s declaration is admissible under Fed.R.Evid. 1006 is not persuasive. That Rule, which provides that voluminous records may be presented to the court in the form of a summary, is inapplicable: Paragraph 10 does not include a condensation of voluminous records, but instead reflects Grandy’s opinion, based upon her purported review of employment records. Accordingly, plaintiffs motion to strike this paragraph is granted.

B. Defendant’s motions to strike

1. Declaration of Jeff Pulicella

Defendant moved to strike the declaration of Jeff Pulicella, or, in the alternative, for the opportunity to take Pulicella’s deposition. During oral argument on October 11, 2007, I denied the motion to strike Pulicella’s declaration, and granted the motion to take Pulicella’s deposition. Defendant moves separately to strike paragraphs 2, 3, 6, 10, 11 and 12 of Pulicella’s declaration.

Paragraph 2 of Pulicella’s declaration states that Pulicella was offered a job without filling out an application, and without Home Depot knowing anything about his background other than that he had been a police officer for 11 years.

Home Depot moves to strike this paragraph on the grounds that Pulicella has no personal knowledge of what Home Depot knew about his background, and provided no foundation for his knowledge of what factors Home Depot may have used in establishing his initial pay. I deny the motion to strike this portion of Pulicella’s declaration because I interpret Pulicella’s statement as referring to what he told Home Depot—a matter about which Pulicella could be expected to have personal knowledge. Though Pulicella subsequently testified that he informed Home Depot that he had experience supervising painting crews before he started working for Home Depot, he testified that he was offered a job in an earlier meeting, and did not testify that he referred to that experience in the earlier meeting. His testimony and declaration are therefore not inconsistent.

Paragraph 3 of the declaration states that, when he was hired, Pulicella had no relevant prior experience in construction or remodeling, other than work on his own home, and that he had no relevant prior retail experience. That paragraph adds that any information Home Depot has to the contrary is false. Home Depot moves to strike this paragraph on the grounds that though the statements “may be relevant to show that Pulicella lied on his application,” they are not relevant to any claim in this action. It adds that the only facts that are relevant are those that were known to Home Depot when it determined Pulicella’s compensation. Home Depot also asserts that this statement is inconsistent with Pulicella’s testimony that he had supervised a painting crew.

I grant the motion to strike the portion of paragraph 3 of Pulicella’s declaration stating that Pulicella had no prior painting experience before he was hired because it is inconsistent with Pulicella’s deposition testimony. I deny the motion to strike the balance of paragraph 3.

Paragraph 6 of Pulicella’s declaration states that Pulicella had much more first hand experience working with plaintiff than did Pierrat or Baird, that plaintiff was “an exemplary employee” whose “top priority was to ensure there were no safety violations,” and that plaintiff was as qualified as Pulicella to work as a department head.

Home Depot contends that this paragraph should be stricken because Pulicella is not competent to testify as to whether or not plaintiff was an exemplary employee, as to plaintiffs priorities, or as to whether plaintiff had the qualifications that Home Depot considered necessary for the department head position.

I disagree. A trier of fact crediting Pulicella’s testimony about, the duration and closeness of the working relationship between Pulicella and plaintiff could conclude that Pulicella was competent to testify as to plaintiff’s qualities as an employee. A trier of fact who concluded that Pulicella had worked closely with plaintiff could reasonably conclude that Pulicella had a knowledge of plaintiffs priorities that was based upon observation and experience, and could conclude that Pulicella had the knowledge and experience required to state an opinion as to whether plaintiff was as qualified as Pulicella to work as a department supervisor. I therefore deny the motion to strike paragraph 6.

Paragraph 10 of Pulicella’s declaration states that Pulicella did not have any skills, experience, or education that justified a difference in pay when he and plaintiff both worked as freight team department heads. This paragraph adds that, based upon plaintiffs performance, Pulicella did not believe there was any basis for paying plaintiff less than other department heads were paid. This paragraph also states that Pulicella was familiar with factors used to determine employees’ rates of pay, and that Pulicella researched pay rates at other stores.

Home Depot contends that Pulicella lacks the personal knowledge of the factors it used to determine employee’s rates of pay, and that he has not established a foundation for his statement that there was no basis to pay plaintiff less than other employees working as department heads. It also contends that Pulicella’s statement that he was familiar with the factors used to determine pay rates -and researched pay rates at other stores is inconsistent with his testimony that he had never seen a copy of Home Depot’s administrative guidelines.

It appears that Pulicella had sufficient knowledge about plaintiffs experience and skills and the knowledge and skills required to work as a freight team department head to offer an opinion as to whether there was a justifiable basis for paying her less than he was paid. It appears that Pulicella had enough experience working at Home Depot to form an admissible opinion as to whether there was a basis for paying plaintiff less than other department heads were paid. . Pulicella’s testimony that he had not seen a copy of Home Depot’s administrative guidelines is not necessarily inconsistent with his declaration that he knew what factors were considered in determining rate of pay, because he could have learned of the relevant factors from other sources. I therefore deny the motion to strike paragraph 10.

In the 11th paragraph of his declaration, Pulicella states that he was very familiar with plaintiffs commitment to safety, and knew that plaintiff was not terminated for tolerating or condoning safety violations. This paragraph states that “Pierrat’s statements made clear” to Pulicella that plaintiff would not have been terminated if she was not female.

Home Depot contends that this portion of paragraph 11 should be stricken because it lacks foundation and “is merely Pulicella’s conclusory, subjective opinion of Pieratt’s motivations.” It also argues that Pulicella’s assertion that Pieratt stated that plaintiff could not handle the guys on the freight team is inconsistent with Pulicella’s testimony that Pieratt said that the members of the team did not respect plaintiff because she was female. I disagree. Pulicella’s declaration provides a sufficient foundation for his opinion that, but for her gender, plaintiff would not have been terminated. In addition, Pulicella’s declaration about Pierett’s statements concerning plaintiffs problems with the night crew is not necessarily inconsistent with his testimony on that issue. The motion to strike paragraph 11 is therefore denied.

In paragraph 12 of his declaration, Pulicella states that he had observed that plaintiff was treated differently than her male counterparts at Home Depot. As an example of this treatment, he states that, when he told management that his male associates on the night shift were underpaid, pay increases were made “outside the normal pay increase cycle.” Pulicella adds that Peirrat told him he could do this by “getting approval at the district level,” but that Peirrat ignored plaintiff when she raised the issue of her pay.

Home Depot contends that these statements should be stricken because Pulicella has not identified the male associates who allegedly received pay increases, because he did not establish that other employees were “proper comparators,” and because he “has no personal knowledge of how Home Depot made pay decisions for its associates.” I disagree, and deny the motion to strike these statements. Based upon the personal experience at Home Depot described in his declaration, it appears that Pulicella had the knowledge required to provide admissible testimony about the matters set out in paragraph 12 of his declaration.

2. Declaration of Ken Meno

Home Depot moves to strike all or portions of paragraphs 2, 3, 5, 7, 8, 14, and 15 of the declaration of Ken Meno.

Paragraph 2 includes Meno’s statements that plaintiff had worked without the support of a salaried manager for several months before he arrived, and that she subsequently worked without such a manager even after he left the Troutdale store. Meno further stated that this was in contrast to other stores in the district in which male freight operation department heads worked with a salaried manager, and that plaintiff “was not receiving management support in addressing several issues.”

Home Depot contends that these statements should be stricken because Meno has not shown a foundation for his purported knowledge of whether a team was working without a manager, stated how he knew how other stores in the district were operating, or stated how he knew that plaintiff was not receiving support on “several issues.” I disagree. In portions of paragraph 2 to which Home Depot does not object, Meno states that he spent several days reviewing personnel files, talking to other managers, and meeting with “the team” when he took over as Night Operations Manager. He also states that he had worked in several other stores before working at the Troutdale Home Depot. This experience appears to provide a sufficient basis for Meno’s statements regarding practices in other stores, and for his assertion that plaintiff did not receive managerial support before he began working at the Troutdale store. Though Meno did not specify the “several issues” on which he found plaintiff was not receiving support, those issues appear to be sufficiently identified in the remainder of Meno’s declaration. The motion to strike is therefore denied as to the preceding statements. The motion is granted as to Meno’s statement that plaintiff continued to work without a salaried manager present after .Meno left the Troutdale store, because nothing in Meno’s declaration indicates how Meno obtained this knowledge.

Paragraph 3 includes Meno’s statements that plaintiff needed to receive advanced notice of training classes because these were held during the day, which would require plaintiff to change her sleep patterns and schedule child care. It also includes Meno’s assertion that plaintiffs male counterparts were sometimes notified of training sessions a month in advance, but plaintiff was given only a few days notice before classes were held.

Home Depot moves to strike these statements on the grounds that Meno “had no personal knowledge of what was more important for plaintiff or why,” and whether other employees may have had issues of sleep and child care that would have made their advanced receipt of notice of training programs no less important. Home Depot also asserts that the statements regarding other employees’ advance notification should be stricken because Meno provided no foundation for his conclusion that others received more advance notice than did plaintiff, and because Meno failed to identify the “male counterparts” who received more notice.

Based upon a careful review of Meno’s entire declaration, I conclude that Meno has established a sufficient foundation for these statements, with the exception of the assertion that, because of sleep and child care issues, plaintiff had a greater need for advanced notification of scheduled training than did other employees. Accordingly, the motion to strike is granted as to that portion of paragraph 3 of Meno’s declaration, and is denied as to the balance of the paragraph.

In the challenged portion of the 5th paragraph of his declaration, Meno states that any male with plaintiffs performance would have received at least an “achiever” rating in the performance evaluation. Meno adds that he has no doubt that plaintiffs performance reviews were downgraded because of plaintiffs gender, and that Seibert and Martindale did not work with plaintiff or have the opportunity to review her performance “other than possibly a rare or sporadic occasion.”

Home Depot moves to strike these statements on the grounds that Meno lacked the personal knowledge of how other employees would have been rated or why plaintiffs supervisors downgraded her review. It also contends that Meno did not have personal knowledge of whether Seibert or Martindale had an opportunity to observe plaintiffs performance.

I disagree, and deny the motion to strike this portion of Meno’s declaration. Based upon a review of Meno’s declaration as a whole, it appears that Meno had sufficient experience with the review process to offer an admissible opinion as to whether any other employee who performed as did plaintiff would have received at least an “achiever” rating. His statement that he had no doubt that plaintiffs performance review was downgraded because of plaintiffs gender addresses, not a fact, but an opinion as to which it appears he is qualified to testify, based upon his experience. It also appears that Meno’s work at Home Depot afforded him the opportunity to draw reasonable conclusions about the opportunities that Seibert and Martindale had to observe and review plaintiffs performance.

In the challenged portion of the 7th paragraph of his declaration, Meno states that he had a conversation with Joyce Speed, the District Manager, that confirmed the importance, under Home Depot’s pay guidelines, of paying employees in the District “equitably.” This portion also includes Meno’s assertion that, in reviewing rates of pay, he “discovered that Nancy Delima was paid significantly less than other male DH’s with similar lengths of service.”

Home Depot contends that these statements should be stricken because Meno does not have the personal knowledge required to provide evidence on these matters, has not provided a foundation for his knowledge of the factors used to determine pay rates for various individuals, and has failed to identify the “male DH’s” who were paid more than plaintiff was paid.

These arguments are not persuasive. Meno’s statement about his conversation with Speed provides a foundation for his assertion that the importance of equitable pay under Home Depot’s pay policy was confirmed. Meno set out the basis of his conclusion that plaintiff was not paid equitably, which was the disparity in pay between plaintiff and “other male DH’s with similar lengths of service” in the District. This provides a sufficient basis for Home Depot to challenge Meno’s conclusion, because it is expected to have employment records showing the length of service of other male department heads in the District at the time Meno states that he made this comparison. I therefore deny the motion to strike these statements.

In the portion of the 8th paragraph of Meno’s declaration which Home Depot challenges, Meno asserts that no individual from Home Depot “ever raised any legitimate reasons as to why [plaintiff] was so poorly compensated,” and that Meno never “witnessed] any reason why Nancy should not receive an increase.” Home Depot also challenges Meno’s assertion that the store manager could have obtained approval from the district manager for an “out of cycle pay increase,” and that plaintiffs “greatest percentage increase” resulted from Meno’s approval of a raise for her while he was the acting store manager.

I grant the motion to strike Meno’s statement that no one from Home Depot ever raised any legitimate reason as to why plaintiff was so “poorly compensated,” because I agree that Meno could not know if anyone working for defendant ever gave a legitimate reason for plaintiffs compensation. I deny the motion as to the balance of the statements, however, because Meno can testify as to whether he ever saw any reason why plaintiff should not have received a raise: It appears that, from his experience working for Home Depot, Meno would know whether a store manager could obtain approval for an “out of cycle” pay raise. It also appears that Meno would know whether plaintiffs greatest percentage increase resulted from his approval of her raise.

In the portion of paragraph 14 which Home Depot challenges, Meno states that, during the time he worked for Home Depot, he was never aware of a supervisor or manager being terminated for disagreeing with a personnel decision or for condoning violation of a safety policy. Home Depot also challenges Meno’s statement that he challenged the decision to terminate an associate “for safety,” and was not terminated.

Home Depot contends that these statements should be stricken because Meno did not provide a foundation for his knowledge of “why all Home Depot supervisors or managers were terminated,” and has not “identified a foundation for his allegations of why supervisors were or were not terminated.”

These objections fail. Meno did not categorically state that no supervisors or managers were terminated for disagreeing with a personnel decision of condoning a safety violation while he worked for Home Depot. Instead, he simply stated that he “was unaware” of such occurrences. Meno has the required knowledge to testify as to whether he was aware of certain events. He also has the personal knowledge required to state that he challenged a particular termination decision, and was not terminated.

Home Depot challenges all of the statements set out in paragraph 15 of Meno’s declaration, in which Meno lists 11 ways in which Home Depot’s operations and management are centralized. Home Depot contends that Meno has no human resources experience with Home Depot, and that he has not established a foundation for knowledge of the information listed in this paragraph.

Based upon Meno’s experience described in the declaration, it appears that Meno would be expected to have sufficient knowledge to testify as to statements 2, 3, 4, 5, 6, 7, 8, and 10. The motion to strike is therefore denied as to those statements. Because it is not clear from the declaration that Meno’s experience would have given him the knowledge to testify as to statements 1 and 9 in paragraph 15, the motion to strike is granted as to these statements.

3. Plaintiff’s Declaration

Home Depot moves to strike portions of paragraphs 4, 6, 7, 10, and 11 of plaintiffs declaration.

In the portion of the 4th paragraph that Home Depot seeks to strike, plaintiff states that, in June of July 2003, she complained to Meno that her rate of pay was discriminatory.

Home Depot moves to strike this statement on the grounds that it is inconsistent with plaintiffs deposition testimony about her complaints concerning pay increases. Home Depot cites plaintiffs testimony stating that she had a meeting in February 2003 in which she complained that she was not being paid enough, but that she did not, at that time, attribute the inadequacy of her pay to gender discrimination. Home Depot asserts that plaintiff cannot create an issue of fact through a declaration that contradicts prior deposition testimony.

From the brief portion of plaintiffs deposition testimony cited in Home Depot’s motion to strike, it is not possible to determine whether plaintiffs declaration is inconsistent with her deposition testimony. Plaintiffs assertion that she told Meno in mid 2003 that her pay was discriminatory is not necessarily inconsistent with a complaint to different managers in February of that year that did not cite gender discrimination as the reason for her inadequate pay. The deposition question eliciting plaintiffs response did not ask plaintiff to list every subsequent complaint about the pay reflected in the cited exhibit, and plaintiff could have concluded after February 2003 that her pay was discriminatory. Because plaintiffs declaration is not necessarily inconsistent with the cited deposition testimony, the motion to strike this portion of the declaration is denied.

In the portion of the 6th paragraph of plaintiffs declaration that Home Depot moves to strike, plaintiff states that she was willing to make herself available during the day for DST training, that Baird declined to schedule her for such training with the two weeks notice given to male employees, and that the DST documentation provided by Home Depot is inaccurate to the extent that it shows that she received any formal training.

Home Depot seeks to strike plaintiffs statement that she received no formal training and that DST documentation to the contrary provided by Home Depot was inaccurate because it is inconsistent with plaintiffs deposition testimony that she took one class of DST training. It moves to strike plaintiffs assertion that male employees were provided with two weeks of notice of training opportunities on the grounds that plaintiff has not provided a foundation for her purported knowledge of the notice provided to those employees.

The motion to strike is granted as to plaintiffs assertion that she received no formal training, and to the extent that plaintiff states that male employees received two weeks notice that training would be offered. The motion is denied as to plaintiffs assertion that she was willing to make herself available for DST training during the day, because Home Depot has cited no deposition testimony that contradicts that assertion, and plaintiffs willingness to make herself available for training during the day is a matter about which she is competent to testify.

In the portion of the 7th paragraph of plaintiffs declaration to which Home Depot objects, plaintiff states that she has never seen a document entitled “Discipline Process Tracking” that references a “final counseling session” with Baird dated April 24, 2003, and references a violation for ignoring a banner barricade. Plaintiff also states that she was never given a “counseling session” that was referred to in the document. Home Depot objects to these statements on the grounds that they are inconsistent with plaintiffs deposition testimony in which, having been shown the document and asked if she recalled having any discussion with Baird about the banner requirement in early 2003, she , replied that she “remember[ed] having a discussion with him.”

I deny the motion to strike the challenged portion of paragraph 7 because it is not necessarily inconsistent with plaintiffs deposition testimony. In her declaration, plaintiff states that she was not given a “counseling session” as represented in the discipline tracking document. That is not necessarily inconsistent with plaintiffs deposition testimony that she recalled having a discussion about the matter with Baird, because plaintiff and Baird could have discussed the banner barricade requirements without any mention of plaintiffs alleged violation, and have discussed a violation by plaintiff without the conversation rising to the level of formal “counseling” implied by the record of the “discipline process tracking” document in question.

In the portion of paragraph 10 to which Home Depot objects, plaintiff states that, after returning from maternity leave in May 2004, she told Meno that Yamashita had teased her about expressing milk for her baby, had paged employees to go into the training room while she was expressing milk, and had taunted her by shaking the handle to the room and saying that he would bring cereal for the milk she stored in the refrigerator.

Home Depot contends that these statements are inconsistent with plaintiffs deposition testimony that she did not recall asking Meno to talk to Yamashita about this conduct but was “pretty sure he did.” Home Depot also objects to the statements as inconsistent with plaintiffs testimony that she complained generally about Yamashita’s management style, but did not testify “that he had harassed her or treated her differently because she was a woman.”

I deny the motion to strike these particular statements, because plaintiffs declaration is not necessarily inconsistent with her deposition testimony. Plaintiffs declaration that she told Meno that Yamashita harassed her is not inconsistent with her deposition testimony that she does not recall asking Meno to talk with Yamashita about his conduct. In addition, though portions of plaintiffs deposition testimony have been omitted from the record submitted to the court, it appears that plaintiff testified that she complained about the incidents involving Yamashita set out in paragraph 10 of her declaration. On page 214 of the plaintiffs deposition, counsel for Home Depot asked plaintiff if she had told everything that she recalled about the complaints she made concerning Yamashita. In response, plaintiff asked counsel whether he was referring to “just the harassment ones or any complaints?” This certainly suggests that plaintiff had characterized Yamashita’s conduct as harassment.

In the portion of the 11th paragraph of plaintiffs declaration to which Home Depot objects, plaintiff states that Pieratt was aware that the violation for which Samad had been terminated had occurred on other shifts, “but chose not to enforce the policy, except when minorities were involved.”

Home Depot contends that this statement should be stricken because plaintiff had no personal knowledge about Pieratt’s awareness or why he had chosen to enforce a policy. I agree, and grant the motion to strike this statement.

II. Defendant’s Motion for Summary Judgment

A. Standards for Evaluating Motions for Summary Judgment

Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may discharge this burden by showing that there is an absence of evidence to support the nonmoving party’s case. Id. When the moving party shows the absence of an issue of material fact, the nonmoving party must go beyond the pleadings and show that there is a genuine issue for trial. Id. at 324,106 S.Ct. 2548.

The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). Reasonable doubts concerning the existence of a factual issue should be resolved against the moving party. Id. at 630-31. The evidence of the nonmoving party is to be believed, and all justifiable inferences are to be drawn in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1985). No genuine issue for trial exists, however, where the record as a whole could not lead the trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Pla