Full opinion text
OPINION AND ORDER JOHN V. ACOSTA, United States Magistrate Judge. : Introduction Plaintiff Kimberly Arnold (“Arnold”) brings this employment lawsuit against defendant Pfizer, Inc. (“Pfizer”) arising from a prior employment relationship. Arnold alleges claims of discrimination and retaliation under Title I of the Americans with Disabilities Act (“the ADA”), 42 U.S.C. § 12101 et seq.; discrimination and retaliation under the Oregon Rehabilitation Act, Oregon Revised Statutes (“ORS”) 659A.100 et seq.; retaliation for filing a workers compensation claim, in violation of ORS 659A.040; violation of the Family and Medical Leave Act (“the FMLA”), 29 U.S.C. § 2601 et seq., and wrongful termination. Pfizer moves for summary judgment on all claims. For the reasons below stated, Pfizer’s motion is granted as to Arnold’s Oregon Rehabilitation Act retaliation, workers compensation retaliation, and wrongful termination claims. The motion is denied as to Arnold’s ADA discrimination and retaliation, Oregon Rehabilitation Act discrimination, and FMLA claims. Factual Background Arnold began working at Pfizer in 1996 as a sales representative. (Jatana Declaration (“Deck”), Exhibit (“Ex.”) B at 17, 20.) Sales representatives “call on physicians, hospitals and other healthcare providers to explain the benefits of and to sell Pfizer’s pharmaceutical products.” (Jennings Deck ¶ 5.) Sales representatives report to a district manager. Id. Arnold’s employment with Pfizer was “at will.” (Jatana Deck, Ex. B at 18.) Arnold’s employment was also governed by the Prescription Drug Marketing Act (“PDMA”), of which she was aware and with which she knew she was obligated to comply. (Jatana Deck, Ex. B at 20.) Arnold was aware of Pfizer’s policy of encouraging employees to register problems or complaints with management, or “anybody up the chain of command.” (Jatana Deck, Ex. B at 26.) Arnold testified that she was aware of Pfizer policies and her obligation to comply with them, as well as those requirements set forth under the PDMA. (Jatana Deck, Ex. B at 28-44.) One of Arnold’s duties as a sales representative was to furnish healthcare providers with samples of Pfizer products, a practice referred to as “sampling.” (Jatana Deck, Ex. B at 29.) Starters are samples given to physicians and their distribution must be documented. (Jatana Deck, Ex. B at 29-30.) Arnold was aware that she was required to accurately document all starter activity by way of a Starter Activity Form (“SAF”). (Jatana Deck, Ex. C at 10-11.) The SAFs state that starter activity should be entered and synchronized daily. (Jatana Deck, Ex. C at 12.) According to Arnold, during her eleven-year tenure with Pfizer in Oregon, “no Pfizer manager, supervisor, or official ever talked to [her] about the [SAFs] until May 27, 2009, a few weeks before [she] was terminated.” (Arnold Deck ¶ 9.) In 1999, Arnold received a promotion to Specialty Healthcare Representative and was -transferred to Portland. (Jatana Deck, Ex. B at 21; Arnold Deck ¶ 8.) Arnold was promoted twice more by Pfizer, to Cardiovascular Specialty Healthcare Representative and Senior Cardiovascular Specialty Representative. (Arnold Decl. ¶ 11-12.) On September 1, 2005, Pfizer reorganized and laid off much of its workforce. (Arnold Decl. ¶ 17.) Arnold was not laid off but, in order to stay in Portland, she relinquished her position as a Specialty Healthcare Representative and took a position as a Primary Care Healthcare Representative. (Jatana Decl., Ex. B at 21-22, 68; Arnold Decl. ¶ 17.) Between 2001 and 2005, Arnold went on medical leave three times. The first was following her pregnancy, the second for surgery to remove her gallbladder, and the third after she broke her foot. (Arnold Decl. ¶ 18.) Each time, Arnold was returned to the same position and the same rate of pay she enjoyed prior to going on medical leave. (Jatana Decl., Ex. D at 8-11, 14-15.) On September 16, 2005, Arnold was driving on the job when she was hit by a FedEx delivery truck. (Jatana Decl., Ex. B at 68.) Arnold subsequently sued FedEx for negligence. (See Complaint, Jatana Decl. Ex. B at 81-83.) Around the same time, Arnold again went on medical leave, or short-term disability, as the result of injuries sustained in the accident. (Arnold Decl., Exs. 4, 5.) Dr. Agatha Nody (“Dr. Nody”) and Nurse Jenny Mark (“Nurse Mark”), with Pfizer, are responsible for approving short-term disability and scheduling independent medical examinations (“IME”). (Jatana Decl., Ex. B at 52.) Arnold informed Pfizer that she was ready to return to work in early 2006. On March 1, 2006, Dr. Nody wrote to Arnold, informing her that although Pfizer had received her “Return to Work Status form,” she was required to undergo an IME to ensure her readiness to return to work. The letter advised Arnold that she would be contacted by a third party, Uni-val, about scheduling the IME. (Arnold Deck, Ex. 6.) The examination was subsequently scheduled for March 16, 2008, with Dr. Thomas P. Anderson, M.D. (“Dr. Anderson”). (Arnold Deck, Ex. 7 at 1.) The day before, March 15, 2006, Arnold underwent a “Functional Capacity Evaluation” (“FCE”), administered by Health-south Mountain View and physician Jeff Gerry, M.D. (“Dr. Gerry”). Dr. Gerry deemed Arnold fit to perform light work, leaving her able to lift twenty pounds occasionally and ten pounds frequently. (Arnold Deck, Ex. 8 at 1.) Arnold was not cleared to work by the March 16, 2006, IME. (Arnold Deck Ex. 10.) In an April 16, 2006, email to Carol Crane (“Crane”), Arnold stated that she wished to return to work full time, would attempt to schedule another IME, and was concerned that her position had been posted on Pfizer’s website. (Arnold Deck Ex. 10.) The next day she emailed Dr. Nody and Nurse Mark, expressing her desire to schedule another IME in light of her improved condition. (Arnold Deck Ex. 11.) A letter from Dr. Nody stated that Arnold’s short-term disability benefits would exhaust on March 17, 2006. (Arnold Deck' Ex. 9.) On April 26, 2006, Arnold underwent another IME, conducted by Dr. Edward Grossenbacher (“Dr. Grossenbacher”), wherein Arnold was found capable of operating a motor vehicle, lifting up to twenty-five pounds, and returning to her position at Pfizer. (Arnold Deck Ex. 14.) Arnold again took leave, between October 31, 2006, and the end of June 2007, for cervical spine surgery, the result of her motor vehicle accident with FedEx. (Arnold Decl., Ex. 15 at 1; Jatana Decl., Ex. D at 32.) Arnold was approved for short-term disability benefits from November 6, 2006, through December 15, 2006. (Arnold Decl., Ex. 15 at 1.) She applied for long-term disability, which request was denied. While still on short-term disability leave, Arnold noticed that her position had been posted' online as an available position at Pfizer. In a February 27, 2007, email sent to Dr; Nody and Nurse Mark, Arnold stated she was ready to return to work on April 1, 2007, and asked if she needed another IME. Dr. Nody responded that an updated IME was required and that she would “proceed to schedule the IME.” (Arnold Decl. Ex. 16.) On April 16, 2007, Arnold was released for “modified work” by Dr. Anderson beginning on April 30, 2007. (Arnold Decl. Ex. 17.) Pfizer informed Arnold she would have to “undergo a Fitness for Duty (FFD) examination” prior to her return and extended Arnold’s short-term disability benefits through May 6, 2007. (Arnold Decl., Ex. 18.) Arnold emailed Crane, stating that she wanted to return to work and was concerned about her position being posted in the meantime. (Arnold Decl. Ex. 19.) In a May 4, 2007, letter, Dr. Nody informed Arnold that she would need to obtain an FFD evaluation, including an FCE, prior to returning to work. Arnold testified that Pfizer put off scheduling an IME until after her short-term disability ran out. (Jatana Deck, Ex. D at 40.) On May 29, 2007, Julie Jennings (“Jennings”), Senior Manager of Human Resources at Pfizer, notified Arnold by letter that her short-term disability had exhausted as of May 6, 2007, and that Pfizer policy permitted it to reassign Arnold “to a Regional Representative territory in [her] current district” and to “fill [her] vacant territory.” (Arnold Deck Ex. 21.) On June 4, 2007, Arnold emailed to Jennings in response, arguing that she had complied with all of Pfizer’s requirements, but that Pfizer personnel unreasonably delayed scheduling the examinations that would permit her to return to work. (Arnold Deck, Ex. 25.) This prompted a series of emails amongst Pfizer personnel regarding whether there had, in fact, been a delay in scheduling the necessary tests and whether Arnold’s position should continue to be posted online. (Arnold Deck Ex. 24.) The consensus was that the posting should be taken down. Id. Arnold’s email also prompted Jennings to forward the exchange to Crane, stating: “Carol, please file and keep record of this. I think we[]should maintain electronic or paper files once a[ disability starts down this type of road.” (Arnold Deck Ex. 28.) On June 8, 2007, Arnold’s FCE issued, stating that she could return to work, but limiting her to lifting twenty pounds occasionally and ten pounds frequently. (Arnold Deck, Ex. 27 at 1.) On June 18, 2007, Arnold’s IME took place and Dr. Grossenbacher cleared Arnold to work with light duty restrictions. (Arnold Deck, Ex. 31 at 1, 4.) Pfizer was in receipt of the IME by at least June 21, 2007, and Arnold was back to work by the end of the month. (Arnold Deck Ex. 32, 34.) Arnold’s 2007 performance review was largely positive. (Arnold Deck, Ex. 37.) After returning to Pfizer in June 2007, Arnold discussed with her supervisor, Mark Johnson (“Johnson”), that she was subject to a lifting restriction by her doctor, and was still in pain, particularly when she had to bend down to pick something up. Johnson suggested that she request a van with a “lift back” as an accommodation from Pfizer to minimize her need for bending over. (Jatana Deck, Ex. B at 54-55.) On February 6, 2008, Arnold requested the accommodation from Dr. Nody at Pfizer. (Jatana Decl., Ex. D at 57.) Dr. Nody asked to see Arnold’s medical file from her pain specialist, Dr. Andrew- Chiu (“Dr. Chiu”), to determine whether the accommodation was necessary. (Jatana Deck, Ex. B at 55.) Arnold complied and, approximately one month later, Dr. Nody contacted Arnold and said that Arnold’s chart notes indicated that she was on medication that would impair her driving; Id. Dr. Nody stated that Arnold should not be out working in the field and should be on short-term disability. (Jatana Deck, Ex. B at 56.) Dr. Nody also contacted Arnold’s pain specialist, Dr. Chiu, to inform him of same. Id. Arnold wanted to continue working, however, and worked with Dr. Chiu to get on an appropriate pain medication that would permit her to continue driving. (Jatana Deck, Ex. B at 55-56.) Dr. Nody voiced another objection to the new medication and Arnold again contacted Dr. Chiu to address that further concern. (Jatana Deck, Ex. B at 56-57.) Throughout this process, Arnold was in contact with Johnson who assured her that everything would be okay. She informed Johnson about her contact with Dr. Nody and how upset she was that Dr. Nody was pressuring her to go on short-term disability or to quit working for Pfizer altogether. (Jatana Deck, Ex. B at 57; Ex. D at 30.) Dr. Chiu informed Pfizer that he had prescribed Arnold a pain medication, Ultram, to be taken only once daily, at night. (Arnold Deck Ex. 48.) On April 17, 2008, Dr. Nody cleared Arnold to drive. (Arnold Deck Ex. 49.) Shortly thereafter, on April 30, 2008, Dr. Nody approved Arnold’s accommodation request, deeming it a “qualifying condition under the ADA[.]” (Arnold Deck Ex. 50.) However, by August 3, 2008, Arnold still had not received the vehicular accommodation. She queried Johnson as to the delay, and he forwarded her inquiry to Andrew Powell (“Powell”) in human resources. (Arnold Deck Exs. 51, 52.) Throughout her tenure with Pfizer in Oregon, Arnold had five district managers: Lisa Ness, Leslie Fox, Gerald Bringhurst, Mark Johnson, and Darcy Small. Johnson was Arnold’s district manager from early 2007 until January 30, 2009, at which time Small took over as district manager. (Jatana Deck, Ex. B at 24.) In his experience with Arnold, he believed that she had good rapport with physicians and he never questioned the service she was providing or her honesty in- representing that service. (McCool Deck, Ex.-A at 8.) Johnson testified that he was never concerned about the amount of pain medication Arnold was taking, with respect to both her job performance and her ability to drive. (McCool Deck, Ex. A at 19.) In January 2009, extensive layoffs took place at Pfizer. (Jatana Deck, Ex. C at 19.) Out of fifteen to twenty representatives in Portland, Arnold was one of approximately five representatives that was not laid off. Id. Johnson testified that Arnold was not laid off, in his opinion, because she was capable. (McCool'Deck, Ex. A at 23.) Arnold first met Small in person at a February 11, 2009, meeting. -In the course of the lengthy, meeting, Arnold heeded to periodically stand to relieve her back pain. (Arnold Deck ¶ 115.) According to Arnold, Small was offended by this and questioned her about it after the meeting. Id. Arnold told Small about the accident involving the Fed Ex truck and informed her. that she was injured and would likely need -surgery in the coming year. (Jatana Deck, Ex. D at 24.) Later, at a work-related dinner, Arnold told Lonnie Lucherini (“Lueherini”), Regional Manager for Northwest Region at Pfizer, about the accident, her injuries, and future need for surgery; Small was present and privy to this conversation. (Jatana Deck, Ex. E at 6.) ■ Toward the end of February 2009, Small contacted Lucherini with concerns about some of Arnold’s behaviors. (Jatana Deck, Ex. H at 7-8.) Small was concerned because of a series of events: Arnold failed to return Small’s first phone call as her supervisor in a timely fashion, arrived late for their first district meeting, asked to leave that same meeting early, and missed a scheduled one-on-one meeting with Small. (Jatana Deck, Ex. H at 7-12.) Small was also troubled by a sense- she got during a meeting with Arnold’s coworker Rahimi. This concern was based on a comment or gesture made by Rahimi that' made Small think “something’s not right here.” (McCool Deck, Ex. F at 14.) . In response to her concerns, Lucherini recommended that Small contact Jennings, in Human Resources, and Jennings in turn recommended that Small investigate Arnold’s “work activity.” (Jatana Deck, Ex. H at 15; Jennings Deck ¶ 1.) Jennings also suggested Small talk to Johnson,. Arnold’s most recent supervisor. (Jatana Deck, Ex. H at 16.) Following these conversations, Small planned to look at the number of calls Arnold made each day and whether she left samples at those locations. (Jatana Deck, Ex.' H at 20.) Small subsequently requested a starter activity report from Jennings, and then determined that she needed more information regarding Arnold’s work activity. (Jatana Deck, Ex. H at 24-25.) Small testified that, other than “compliance violation[s]” she had no concerns about Arnold. (McCool Deck, Ex. F at 20.) Small testified that she did not look into the starter activity of any representatives other than Arnold, except in comparison to determine if Arnold’s forms were truthful. (McCool Deck, Ex. E at 27.) - - On March 18, 2009, Small forwarded an email regarding a sampling inquiry from Dr. Graham’s-office to Arnold and Rahimi, and Arnold replied that she had sampled the office the previous day. (Arnold Deck Ex. 67.) On April 14, 2009, Small followed up with Arnold and Rahimi regarding the prior inquiry. (Arnold Deck Ex. 70.) Arnold responded via email later that day that she had sampled Dr. Graham three times since the request. (Jatana Deck, Ex. H at. 39.) On April 26, 2009, Arnold emailed Small indicating she was out of Lipitor and Small responded that Arnold’s Lipitor samples were shipped to her on April 18, 2009. (Arnold Deck Exs. 74, 75.) On May 5, 2009, Small emailed Arnold, stating that a report submitted by Arnold “look[ed] good.” (Arnold Deck Ex. 76.) On May 11,- 2009, Arnold emailed Small that she was out sick and Small’s response did not suggest that there was a problem. (Arnold Deck Ex. 77.) On May 13, 2009, Small accompanied Arnold for a half day “ride along,” to observe Arnold working in the field. (Arnold Deck ¶ 153.) In the- course of the ride along, Small asked Arnold how much money she was seeking in her settlement discussions with FedEx, to which Arnold laughingly answered that she was seeking “$4 million, in my dreams.” (Jatana Deck, Ex. B at 71.) Small also inquired about Arnold’s injuries and Arnold told her she would need additional surgery in the future. (Jatana Deck, Ex.- B at 72.) Arnold was upset by some of Small’s questions that day about Arnold’s injury and her lawsuit with FedEx. (Jatana Deck, Ex. B at 70.) Notably, during the same period of time, Small did not accompany Arnold’s coworker Rahimi on a ride along. (McCool Deck, Ex. B at 9.) Ón May 17, 2009, Small emailed Johnson about Arnold’s vacation and sick leave trackers stating that she wanted to have her “bases covered[.]” (Arnold Decl. Ex. 80.) The information contained in Arnold’s vacation trackers is the subject of dispute. (Arnold Decl. Ex. 86, 87.) On May 27, 2009, Arnold met with Small and Lucherini. Arnold describes the meeting in her declaration. First, Arnold, Small, and Lucherini discussed the manner in which Arnold used starter activity pads.Arnold was specifically questioned about alleged discrepancies on two SAFs and she was able to explain the legitimate cause of the discrepancy. Small repeatedly accused Arnold of trying to cover up a lack of work activity and attempted to get Arnold to confess to violations, but Arnold denied she had engaged in any misconduct. Small also questioned Arnold .about absences beginning as early as 2006. Small was hostile and, toward the end of the meeting, Arnold became upset. Lucherini assured Arnold that the purpose of the-meeting was to be clear about expectations and that he and Small would get back to her after they consulted with the legal department and Human Resources. (Arnold Decl. ¶¶ 157-173.) At one point during this meeting, Arnold said “I’m so sorry.' I know this looks bad. I would never mislead.” (Jatana Decl., Ex. D at 22.) The parties dispute the meaning of this statement. According t'o Arnold, she was unprepared to explain her numerous absences and was unable to identify absences that were attributable to vacation or sick leave because she did not have access to her leave trackers. Flustered, she apologized for the appearance of numerous absences and her inability to explain them. (Jatana Decl., Ex. D at 22-23.) Arnold also admitted at the meeting that she was not an organized person. (Jatana Decl., Ex.- D at 23.) Around the same time as Arnold’s meeting with Small and Lucherini, Pfizer initiated an investigation of Arnold’s starter activity. James Batura (“Batura”), Director of PDMA Compliance, conducted this investigation. (Jatana Decl., Ex. G at 5.) Batura characterized Pfizer’s policy as follows: Starter Administration Forms (“SAFs”) are sequentially numbered forms used to record the transfer of starters by representatives to licensed preseribers. The forms are bound in pads containing 25 forms per pad. SAFs are ordered by control number. ... Pfizer must make all starter forms available to the U.S. Federal Drug Administration (“FDA”) and starter forms are considered by the FDA to be the controlling record of a starter transaction. Pfizer’s Starter Administration Policy requires sales representatives to input an electronic record of each starter transaction they have with a physician into a secure electronic database called Sherlock. At the end of each sales day, a sales representative is required to log onto Sherlock and “synch” his or her starter activity report with the Sherlock host computer by logging onto a secure network and uploading the electronic records of the day’s starter activity. (Batura Decl. ¶¶ 4-5.) Batura reviewed Arnold’s starter activity between January 2, 2008, and April 10, 2009. (Jatana Decl., Ex. G at 8.) In this investigation, Batura looked at whether Arnold’s SAFs were used in sequential order, whether transactions from a single day were entered over two or more days, whether transactions were entered electronically but not backed up by hard copies, and the length of time between transaction and electronic entry. (Jatana Decl., Ex. G at 10-24.) On May 12, 2009, the results of Batura’s SAF analysis were circulated via email from Jennings to Small and Lucherini. (Arnold Decl. Ex. 78.) •At deposition, Batura testified that his impression of Arnold’s starter activity was that it represented “very serious” noncompliance. (Jatana Decl., Ex. G at 35.) Batura also testified that his conclusions regarding the percentage of non-consecutive SAFs were based on his own observations, and not a scientific basis. , (McCool Decl., Ex. K at 12.) Batura gave significance to whether Arnold initialed the changes she made to SAFs because the act of initialing would indicate that the mistake was honest and the alteration a correction of said mistake. (Jatana Decl., Ex. G at 38-39.) Batura admitted that, in reporting Arnold’s starter activity to the FDA, Pfizer did not state that Arnold had not called on physicians on the dates recorded on the starter forms, though Pfizer did state that there were reporting discrepancies. (Jatana Decl., Ex. G at 46-47.) Batura also admitted that there was not “anything definitive on that form that would confirm that she didn’t see those providers on those days.” (McCool Decl., Ex. K at 34.) Jennings testified that using SAFs out-of-order was not prohibited and also that waiting for a physician to appear in Pfizer’s database would be appropriate before completing the SAF. (McCool Deck, Ex. G at 21-23, 25.) Notably, after Arnold’s termination, Batura sent an email to Jennings on June 18, 2009, in which he wrote: “Had the audit we conducted of the forms Kimberly Arnold submitted for the five doctors about whom Darcy Small had concerns produced anything actionable I would have been in touch sooner.” (Arnold Deck Ex. 90.) He went on to explain that, of the five doctors contacted, four confirmed their signatures and one failed to respond completely. Id. Furthermore, Batura agreed that Arnold had been trained to fill out starter forms in advance of seeing a doctor, which would at times require a change to the date where sampling did not go as planned, a permitted practice. (McCool Deck, Ex. K at 38-40.) He also admitted, at deposition, that a post-termination audit of Arnold’s starter activity “did reconcile successfully.” (McCool Deck, Ex. K at 16.) Batura further admitted that health care representatives have logged longer delays in entering an SAF but were not terminated. (McCool Deck, Ex. K at 17-18.) Batura did not make a recommendation as to whether Arnold should be terminated for the alleged discrepancies in her starter activity forms. (Jatana Deck, Ex. G at 48.) Jennings also admitted that Pfizer did not contact any of the physicians to determine whether they had, in fact, been sampled on the dates Arnold claimed she had sampled them. (Jennings Deck, Ex. G at 24.) Following the May 27, 2009, meeting with Small and Lucherini, Arnold set up an appointment for June 1, 2009, with Dr. Sue A. Lewis (“Dr. Lewis”), who determined that Arnold suffered from Attention Deficit Disorder (“ADD”). (Jatana Deck, Ex. C at 15-17.) . Dr. Lewis deemed the condition the cause of Arnold’s inconsistent conduct with respect to documenting starter activity and prescribed medication to manage the condition. (Jatana Deck, Ex. C at 16.) On June 2, 2009, Arnold informed Lucherini, via email, that she had been diagnosed with an additional condition that may have affected her ability to complete starter activity with total accuracy. (Jatana Deck, Ex. C at 16, 37.) He told her to call Jennings and report the new diagnosis. Arnold did so, at which time Jennings told her to get a letter from her doctor and give it to Dr. Nody. Jennings also reassured Arnold about the starter activity dispute, stating that she would likely be warned verbally or in writing, and that only rarely <^id such disputes result in termination. (Jatana Deck, Ex. D at 26; Jatana Deck, Ex. E at 5.) • On June 8, 2009, Dr. Lewis faxed a letter to Dr. Nody at Pfizer Employee Health stating that she had recently diagnosed Arnold with ADD and started her on medication. Dr. Lewis wrote: “It is my medical opinion that Kimberly Arnold’s condition has hindered her ability to perform some of her job responsibilities and consequently has hindered her ability to perform some of her overall job performance. I believe that with treatment, her performance should improve.” (Jatana Decl., Ex. R at 2.) Jennings testified that the decision to terminate Arnold was made prior to Arnold’s disclosure to Lucherini of the ADD diagnosis. (Jatana Decl, Ex. E at 14.) She explained: “So we made a decision on Kimberly Arnold’s employment based on the facts that arose from the investigation. And because we had not yet communicated the outcome to her, and she brought this issue forward to Lonnie Lucherini, certainly there needed to be due diligence accorded to see if in fact the medical information that her physician provided to our medical department would have reason to change the decision that all parties agreed to.” (Jatana Decl., Ex. E at 15.) At that point, Pfizer determined that the new information did not alter its plan to terminate Arnold. (Jatana Decl., Ex. E at 16.) According to Jennings, Small and Lucherini made the final decision to terminate Arnold, which decision Jennings supported. (Jatana Deck, Ex. E at 19.) Jennings later testified that the decision-makers were Lucherini and Michelle Wickwire. (Jatana Deck, Ex. E at 32.) On June 25, 2009, Batura wrote a letter to the FDA regarding Arnold’s starter activity and compliance with the PDMA. He first described the irregularities he observed in Arnold’s starter activity reporting. He wrote: “In • a .subsequent interview with her District and Regional Sales Managers, Ms. Arnold admitted to changing the dates on some of her forms and mis-recording those on others in order to conceal a lack of work activity on those days.” (Batura Deck, Ex. A.) He stated in conclusion, however, that Arnold’s last two annual inventories had been in compliance with the PDMA and, “[biased on the information gathered in the course of our investigation, we do not have any reason to suspect that any of the samples issued to her were used for other than their intended purposes.” Id. On July 9, 2009, Arnold and her attorney at the time, Steve Piucci, exchanged emails. Arnold reported to Piucci that she had spoken with her doctor: “He thinks that my termination is [the] result of my accident. I was not able to give work my all because of my pain problem and all the drugs I’m on.” (Jatana Deck, Ex. N.) The parties dispute the meaning of this statement. Pfizer contends that it is an admission that Arnold was not qualified to'perform her essential job duties. Arnold argues that she was merely repeating her doctor’s opinion to-her attorney. As discussed below, this evidence is ambiguous and a trier of fact must determine its meaning. On September 18, 2009, Arnold authored a letter to the Bureau of Labor and Industries (“BOLI”), wherein she alleged that Pfizer was opposing her unemployment claim in retaliation for her refusal to agree to not sue Pfizer. (Jatana Deck, Ex. C at 56.) BOLI conducted an investigation into Arnold’s allegations and recommended that the complaint be dismissed because Arnold “failed to' show any significant connection between her workers’ compensation claim/disabilities and [Pfizer’s] actions.” (Jatana Deck, Ex. C at 59.) On March 19, 2010, Arnold filed a complaint with BOLI. On her “Employment Discrimination Questionnaire,” she indicated that she had been subjected to discrimination based on sex, gender, age, disability, and injured worker status. (Jatana Deck, Ex. C at 43.) She stated that the first and last date of discrimination was June 17, 2009, and that shé hád been terminated without warning for alleged violations of Pfizer’s starter administration policies. Id. In an attachment to this form, Arnold explained the bases for her allegations: first, she stated that Pfizer fired her for a technical violation, without process, because she is more than forty years-old and in a high salary bracket because of her experience; second, she stated that Pfizer knew of her recent ADD diagnosis and that she had been prescribed medication to help her correct her starter activity errors, and terminated her anyway; and, third, she stated that the injuries resulting from her motor vehicle accident with FedEx gave rise to physical limitations and expensive medical bills that Pfizer sought to avoid by terminating Arnold. (Jatana Deck, Ex. C at 45-47.) She was unable to identify any comparators, but noted that the EEOC was investigating Pfizer for civil rights violations and that she was one of many older employees who experienced similar treatment. (Jatana Deck, Ex. C at 49.) With respect to her injured worker complaint, Arnold reported that she had returned to the same position she held before the accident involving the FedEx truck, and that Pfizer neither offered her a light duty position nor placed her on OFLA leave. She wrote: “I had no choice but to go back full time or lose my job.” (Jatana Deck, Ex. C at 51.) With respect to her disability discrimination claim, she wrote that she could not perform essential functions of her job without accommodation, and that she had requested and received accommodation in the form of “a ear with [an] automatic lift gate” to facilitate loading samples in her car for physician sampling. (Jatana Deck, Ex. C at 54.) She also wrote that her disability limited her in her work life, in the following ways: “With work, I had to rest or go home at times because, of the pain. It would require taking pain medications where I was unable to drive.” (Jatana Deck, Ex. B at 54.) Arnold’s coworkers testified about her condition. Coworker Nooshin Rahimi (“Rahimi”) stated that she at times felt uneasy about riding with Arnold and would offer to drive to avoid being her passenger. She also stated that she had observed Arnold experiencing medication side effects which caused Arnold to sweat and tremble. (Janata Deck, Ex. I at 4, 8.) After Arnold’s surgery, however, she had observed Arnold effectively operating a vehicle and, generally, considered Arnold an effective Pfizer representative. (McCool Deck, Ex. B at 7-8.) Another coworker, Seaneed Rudkin-Manning (“Rudkin-Manning”), testified that she felt similar unease with respect to Arnold’s physical condition, but that she never felt Arnold’s physical condition would prevent her from performing her job at Pfizer. (McCool Deck, Ex. E at 14.) Evidentiary Rulings Pfizer moves to strike the expert testimony of Michael D. Freeman (“Freeman”) (# 105), the Declaration of Olga Buchanan (“Buchanan”) (# 106), and portions of Arnold’s declaration (# 107). Arnold, in her response memorandum, moves to strike portions of the Jatana and Jennings declarations. In its reply memorandum, Pfizer also objects to portions of the McCool declaration and an alleged failure by Arnold to comply with Local Rule 7-1(a). These motions and objections will be addressed in turn. I. Motion to Strike Testimony of Freeman Pfizer argues that Freeman’s expert opinion is neither' qualified nor relevant to the subject matter of this case. Arnold responds that Freeman is qualified to testify and his testimony is relevant to the question of whether Pfizer’s termination of Arnold was lawful. Federal Rule of Evidence (“FRE”) 702 governs testimony by expert witnesses. It provides, generally, that an expert may testify where his or her expert knowledge will assist the trier of fact, and is supported by facts, reliable methodology, and application of said methodology. Fed. R. Ev. 702. Under Supreme Court precedent, trial courts have an obligation to exercise a gatekeeping function with respect to the reliability of admitted expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Expert testimony must assist the trier of fact, but an expert’s bare assertion of validity is insufficient to satisfy this threshold requirement. Tyson v. Oregon Anesthesiology Group, P.C., Civil No. 03-1192-HA, 2008 WL 2371420, at *14-15, 2008 U.S. Dist. LEXIS 44992, at *39 (D.Or. June 6, 2008). FRE 403 authorizes the court to exclude “relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Ev. 403. • Freeman’s'declaration states his expert qualifications. Generally put, he is a Professor of Epidemiology at Oregon Health & Sciences University and has advanced degrees including a Masters degree in biostatistics. He uses statistical analysis on a daily basis, in his work as a professor and as a private forensics consultant, and has published “more than 50 peer reviewed scientific publications that utilize statistical analysis.” (Freeman Decl. ¶ 2.) He also reports that he has “been qualified to testify as an expert witness regarding statistical analysis and forensic epidemiology,” at trial, more than two-hundred times. (Freeman Decl. ¶ 3.) According to Freeman, he was retained to give his expert opinion on the validity of the analysis and conclusions of Batura as offered by Pfizer in support of its motions for summary judgment. Batura’s testimony concerns alleged patterns in Arnold’s “starter activity,” used to support a finding that Arnold was engaged in a prohibited practice known as “form-banking,” which practice was cited as the reason for her termination. Freeman gives several reasons that he would discount Batura’s testimony and conclusions. First, Batura characterized his conclusion that Arnold engaged in misconduct as “possible,” a standard that Freeman concludes fell below that of a “reasonable probability and substantial evidence” that the misconduct took place. (Freeman Decl. ¶ 7.) Second, Freeman characterizes Batura’s finding that Arnold’s SAFs were out of sequence as indirect evidence of misconduct, rather than the kind of direct evidence that would justify termination. He writes: “Thus, even though SAF sequence has been cited by Mr. Batura and Pfizer as an indirect measure of form-banking, there is no evidence that this is a validated construct, for any type of employee misconduct or prohibited practice, including form-banking.” (Freeman Deck ¶ 8.) Third, Freeman states that Batura’s methods did not involve statistical analysis. He goes on to describe a statistically reliable method for evaluating when nonsequential SAF forms were indicative of form-banking, noting that even this analysis is predicated on a threshold finding that “there was a statistically reliable basis for evaluating fraudulent employee activity by looking at SAF sequence.” (Freeman Deck ¶ 9.) In Freeman’s view, neither of these analyses were performed by Batura. Freeman goes on to identify Batura’s specific conclusions and states his own opinion that Batura’s conclusions do not necessarily follow from the data he relied on. He notes that Batura used conditional language like “should” or “might” to express his conclusions and also that his statements lacked a foundation in statistics to reliably indicate that form-banking or other concealment took place. Freeman concludes: “Ultimately, it is apparent that Pfizer’s claim that Ms. Arnold was form-banking because she used SAFs out of order does not rise above the level of bald assertion, and is completely lacking in any supporting evidence that would allow for a conclusion regarding the probability of the former given the latter.” (Freeman Deck ¶ 13.) A. Freeman’s Qualifications Pfizer argues, essentially, that Freeman has no expertise in the complex and highly regulated field of pharmaceutical sales and, therefore, cannot render an opinion on Pfizer’s policies, the PDMA, and the record-keeping requirements promulgated therein. In fact, Pfizer argues, Freeman admitted that he lacks experience in this area and that he typically testifies in cases involving personal injury and medical negligence. Arnold argues that her termination was premised, at least in part, on a statistical analysis of her “starter activity” and that Freeman’s testimony is intended to rebut the reliability of this analysis. Arnold argues that Freeman’s lack of knowledge of Pfizer’s policies or the PDMA may go to the weight given Freeman’s testimony, but not to its admissibility. At deposition, Freeman, did state that his role as an expert witness in this case differed from that in previous cases, in that he is typically asked to address more complex issues. Freeman testified that “[i]n this particular case, it was simply a matter of saying, Do you have a valid basis or reliable basis for drawing an inference with regard to a certain characterization of activity ... with regard to Ms. Arnold.” (McCool Deck, Ex 1 at 12:7-11.) He stated that he understood the scope of his inquiry to be limited to an evaluation of Batura’s methods for evaluating Arnold’s performance via her SAFs, “whether there was statistical methodology implied in his conclusions and to determine whether that methodology was a valid basis for his conclusions, valid or reliable.” (McCool Deck, Ex. 1 at 45:23-46:5.) The court agrees with Arnold that Freeman is qualified to testify as to the reliability of the methods used by Batura to evaluate the statistical significance of Arnold’s SAFs. His qualifications in the field of statistics are unchallenged. ■ The court is not persuaded that Freeman’s admitted lack of expertise in the field of medical sales and the PDMA undermines his ability to evaluate Batura’s methodology. For these reasons, the court admits the expert testimony of Freeman for the stated purpose. B. Relevance Pfizer argues that, even if Freeman is found qualified to give his opinion in this'case, his testimony should be excluded -as irrelevant, confusing, and for failing to create a genuine issue of material fact. According to Pfizer, Freeman’s testimony lacks relevance because it does not speak to whether Pfizer had a good faith belief that Arnold violated Pfizer’s policies with respect to SAFs. Pfizer argues that this good faith belief is the touchstone for determining whether a termination had a lawful basis. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir.2002) (“Rather, courts ‘only require that an employer honestly believed its reason for its actions, even if its reason is foolish or trivial or evén baseless.’” (quoting Johnson v. Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir.2001))). Pfizer also argues that, contrary to Freeman’s claim that statistical analysis is required to evaluate violations involving SAFs, such requirement has no legal basis and, furthermore, 'this court ruled against such requirement previously. Finally, Pfizer claims that Freeman’s testimony is confusing and should be excluded. Arnold argues that the standard for relevance is liberal and that Freeman’s testimony is relevant as a direct rebuttal to Batura’s conclusions that purport to carry the imprimatur of scientific validity. Arnold contends that Pfizer’s good faith belief, or lack thereof, is a question for the jury, and that Freeman’s testimony clarifies the issue, rather than confuses it. In sum, Arnold argues, Freeman’s testimony is merely a rebuttal to Batura’s claims and it tends to show -that Pfizer lacked a good faith belief that Arnold was form-banking. Pfizer cites Green v. Kinney Shoe Corp., 715 F.Supp. 1122 (D.D.C.1989) for the proposition that experts may not testify as to ultimate issues of law. In Green, the plaintiff sought to admit expert testimony regarding the discriminatory nature of the defendant’s úse of “subjective Criteria in promoting employees!)]” Id. at 1123. The court declined to admit the testimony, stating: “It should be clear to any reasonable person that a subjective promoting process could enable an employer to hide discriminatory intent.” Id. As such, the court deemed the proffered expert testimony unnecessary and even potentially harmful in that it might convince a jury that the use of subjective criteria in hiring is inherently discriminatory. Thus, the expert was not permitted to testify that an employment test was not discriminatory when “under the proper legal analysis, the test is.shown to have an adverse impact and is not validated as job-related.” Id. The court went on to discuss the admission of expert testimony regarding statistical analysis of minority representation. The testimony of the plaintiffs expert was not admitted because the expert was. not a statistician, and the court “require[d] that any statistical inferences be made through statistical tests approved for use in discrimination cases.” Id. at 1124. The court also expressed its preference “that a qualified statistician ... make such calculations.” Id. Pfizer also cites Arjangrad v. JPMorgan Chase Bank, N.A., 3:10-cv-01157-PK, 2012 WL 1890372, 2Q12 U.S. Dist. LEXIS 71745 (D.Or. May 23, 2012). There, the plaintiff sought to introduce the testimony of an attorney with extensive experience in employment law, including litigating employment cases, advising employers as to human resources practices, and training employees in implementation of those practices. The expert, Buchanan, lacked human resources training, however. Buchanan gave testimony regarding the typical practices of large employers, stating that they are motivated to investigate discrimination complaints to make a showing of good faith, though such investigations are not legally required. He also concluded that defendant Chase Bank’s response to the discrimination complaint at issue was inadequate, and this conclusion was based on the incomplete set of documents provided him by the plaintiffs counsel. The court concluded that Buchanan was qualified to give testimony on the general human resources practices of large companies, but not on Chase’s policies as he had no expertise with respect to those specific policies. It wrote: “While Buchanan clearly has no formalized education or training in HR practices, I find him qualified to testify about standard HR practices in large organizations on the basis of his experience performing discrimination investigations, advising companies, training HR professionals, and writing about HR issues.” Id. at *4, 2012 U.S. Dist. LEXIS 71745, at *11. Although it found the expert qualified on this issue, the court also concluded that Buchanan’s testimony was neither reliable nor relevant. It was not reliable because Buchanan failed to explain “how his experience performing discrimination investigations or his expertise advising employers and HR professionals led him to understand and define generally accepted standards of HR investigation practices.” Id. at *5, 2012 U.S. Dist. LEXIS 71745, at *14. Rather, the testimony asked the court to take the expert’s word on the veracity of his conclusions, a posture that a court may not adopt. The court concluded the testimony was not relevant for several reasons, not the least of which was that unreliable testimony would not meet the low standard that “an expert’s testimony must ‘logically advancef ]a material aspect of the party’s case.’ ” Id. at *6, 2012 U.S. Dist. LEXIS 71745, at *19 (quoting Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311, 1315 (9th Cir.1995)). At deposition, Freeman explicitly testified that he did not examine Batura’s actions for bias and refused to draw a conclusion as to bias. (McCool Deck, Ex. 1 at 82:6-83:1.) He also testified that an employer should engage in “statistical analysis to determine if there is a violation of company policy,” but only where the employer intends to draw a statistical inference from its analysis, as Batura did. (McCool Deck, Ex. 1 at 83:5-10; 88:7-89:5.) Freeman’s testimony is relevant and admissible on the topic of Batura’s statistical methodology and its scientific reliability. Arnold presents Freeman’s declaration as a rebuttal to Pfizer’s allegation of form-banking and its claim that the alleged misconduct is proved by statistical analysis. Accordingly, the evidence is admissible for this purpose. To the extent that Freeman expresses his opinion as to the relative value of Batura’s conclusions, or provides gratuitous negative characterizations of Batura’s work, that content is hereby stricken. Accordingly, Pfizer’s motion to strike the Freeman Declaration is granted in part and denied in part. II. Motion to Strike Buchanan Declaration Pfizer argues that Buchanan’s Declaration should be strickén more or less in its entirety because it is irrelevant and immaterial, lacks a basis in personal knowledge, contains inadmissible hearsay, is unduly prejudicial, is argumentative, and violates the Best Evidence Rule. Pfizer presents its objections in a chart which includes the portion of testimony objected to, the grounds for objection, and a space for the court to indicate its ruling, presumably for the court’s convenience. In general, Pfizer lists the grounds for objection to each portion of the declaration, but does not explain how the objection applies to the portion. In responding to this motion, Arnold takes a similar approach, adding to the chart, her responses to each objection to permit the court to easily compare the portion of testimony with the objection and the response. Arnold also argues that the objections lack specificity or analysis, and addresses the relevance of Buchanan’s declaration as a general proposition. A. Relevance Pfizer does not explain how Buchanan’s testimony is irrelevant. 'Arnold argues that Buchanan is relevant as a comparator to Arnold whose testimony provides evidence that Arnold was treated differently than similarly situated employees of Pfizer. Arnold also argues' that Buchanan’s testimony is relevant evidence that Pfizer lacks credibility. The court agrees that Buchanan’s testimony has some relevance and declines to strike it based on Pfizer’s unarticulated objection. B. Personal Knowledge As a general rule, affidavits submitted at summary judgment must be based on personal knowledge and not merely information and belief. Taylor v. List, 880 F.2d 1040, 1045 n. 3 (9th Cir.1989) (citing Fed.R.Civ.P. 56(e)). Pfizer does not elaborate on its objection that Buchanan lacks personal knowledge of the content of her declaration. Arnold argues that Buchanan is,permitted to present her perception of events she experienced and points out that Buchanan backs up many of her, assertions with documentary evidence. Having reviewed Buchanan’s affidavit, the only statement that falls outside of Buchanan’s personal knowledge is Buchanan’s claim: “My District Manager L. Fox had correspondence with other team members about my English, saying that it was not good enough.” (Buchanan Decl. ¶ 5.) That said, this statement is not relevant to Buchanan’s evidentiary role in this case as a comparator to Arnold and the court will not rely on it for any purpose. To the extent that Pfizer objects to its inclusion in the summary judgment materials, however, the court strikes the statement. C.Hearsay Pfizer provides no explanation for its hearsay objections. The court identifies the following statements allegedly made by Pfizer personnel as the probable targets of this objection: statements by Buchanan’s manager that her English was not good enough and statements urging Buchanan to confess she had lied; comments by a Pfizer manager that Buchanan’s actions “raised a red flag”; statements by Pfizer employees that Buchanan’s position had been filled because her short-term disability had run out and Buchanan had failed to find a replacement position, that Buchanan should access Pfizer'job listings via another employee with computer access; a Pfizer employee’s refusal to extend a termination package to Buchanan; and a Pfizer employee’s statement that Buchanan’s termination was based on her failure to obtain another position at Pfizer following her medical absence, rather than the presently-proffered explanation that she was fired due to irregularities in the SAF activity. [’5] Arnold responds that statements made by Arnold’s managers at Pfizer are attributable to Pfizer itself and are, thus, are opposing party statements offered against it and not hearsay under the Federal Rules of Evidence. See Rule 801(d)(2)(A), (C), (D) (describing statements that are “not hearsay” and including statements “offered against an opposing party” made by the party itself, a personal authorized to speak for the party, or the party’s agent or employee). Such statements are admissible as exceptions to the rule against hearsay so long as the proponent of the statement demonstrates that it “relates to a matter within the scope, of the agent’s employment.” Breneman v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir.1986) (citing Hoptowit v. Ray, 682 F.2d 1237, 1262 (9th Cir.1982)). The court agrees that the statements of Pfizer managers and employees offered here are within the scope of their employment and, therefore, qualify as an exception to the rule against hearsay. D.Prejudice Pfizer identifies as prejudicial statements Buchanan’s characterizations of her experience with Pfizer and Pfizer employees. In her declaration, Buchanan stated her belief that a manager did not like her because she was Russian and was successfully pursuing the American Dream. She characterized a meeting as “nasty, unprofessional” and “traumatic.” (Buchanan Deck ¶ 9-10.) She gave her impression that Pfizer was displeased that she was on medical leave. The court does not find Buchanan’s observations prejudicial such that application of Rule 403 justifies its exclusion from consideration at summary judgment. E. Argumentative Pfizer does not explain how portions of Buchanan’s declaration are argumentative, and the court declines to speculate as to what Pfizer intends. F. Best Evidence Rule Pfizer objects to the admission of copies of correspondence between Buchanan and Pfizer as a violation of the Best Evidence Rule, as expressed in FRE 1002 and 1003. Rule 1003 states, however, “A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.” Fed. R. Ev. 1003. Having failed to raise questions of authenticity or demonstrate unfairness, this objection is not well taken and is denied. The balance of Pfizer’s objections are either redundant or too ambiguous and broadly applied to permit the court to properly identify and rule upon the objectionable material. These include objections that the content is speculative, assumes facts not in evidence, lacks foundation, and is improper lay opinion. III. Motion to Strike Arnold Declaration Pfizer next seeks to strike portions of Arnold’s declaration as irrelevant, inadmissible hearsay, mere embellishment, or inconsistent with prior testimony. This motion is concerned, in large part, with alleged discrepancies between Arnold’s deposition testimony and declaration. Pfizer argues that Arnold may not create issues of fact by contradicting her own prior testimony. Arnold argues, however, that the alleged discrepancies are merely clarifications, elaborations, or the type of minor discrepancies that are the normal incident of witness testimony. The Supreme Court has recognized the “virtual unanimity” of circuit courts that “a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). In the Ninth Circuit, the general rule is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony. “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991) (internal citations omitted) (quoting Foster v. Areata Associates, Inc., 772 F.2d 1453, 1462 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986)). This rule does not extend to situations “in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony. Rather, [the rule is] concerned with ‘sham’ testimony that flatly contradicts earlier testimony in an attempt to ‘create’ an issue of fact and avoid summary judgment.” Kennedy, 952 F.2d at 267. “A party ‘is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition; minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.’ ” Darbut v. Three Cities Research, Inc., Civil No. 06-627-HA, 2008 WL 4426046, at *2, 2008 U.S. Dist. LEXIS 75998, at *4 (D.Or. Sept. 30, 2008) (quoting Messick v. Horizon Ind. Inc., 62 F.3d 1227, 1231 (9th Cir.1995) (citations omitted)). Therefore, the, district court must determine whether the contradictory testimony properly explains or clarifies earlier testimony or instead contradicts it. Pfizer’s objections, Arnold’s responses, and the court’s rulings are summarized as follows: 1. Pfizer objects to alleged inconsistencies regarding Pfizer policies, procedures for documenting starter activity, and Arnold’s knowledge thereof. (¶¶ 6, 9, 14, 15, 116.) Pfizer ignores the distinction between entering and synchronizing starter activity on a daily basis and entering it in the Sherlock system at the end of each week. It also incorrectly conflates Arnold’s knowledge of Pfizer’s policies with conversations about SAFs with her supervisors, as well as the availability of Pfizer’s policy guides with Arnold’s actual review of their contents. The court does not consider Arnold’s declaration testimony regarding these policies in conflict with earlier testimony and declines to strike the cited paragraphs. 2. Pfizer objects to alleged inconsistencies regarding a conversation between Arnold and Dr. Nody regarding pain medication and Arnold’s ability to work. (¶ 78.) Arnold argues, and the court agrees, that the testimony is consistent and any differences are merely peripheral. 3. Pfizer objects to alleged inconsistencies regarding the identity of Arnold’s managers. (¶ 99.) Arnold argues, and the court agrees, that the testimony is consistent. Pfizer ignores the distinction given between direct and indirect managers, or the potential to have more than one manager at a given time. 4. Pfizer objects to alleged inconsistencies regarding meetings between Arnold and Small on February 11, 2009, and April 1, 2009. (¶¶ 117,134,136.) Arnold testified both at deposition and in her declaration that she met with Small in February 2009 and the two discussed Arnold’s injuries as well as the likelihood that she would need surgery in the coming year and would need to take- off time from work. Arnold testified that Small stated that Arnold’s absence would negatively impact her workload as well. The testimony is slightly confused as to whether the meeting happened on February 2 or 11, 2009, but the discrepancy is not material. Arnold also testified about a meeting on April 1, 2009, wherein Small was again made aware of Arnold’s condition. There is no discrepancy between the two accounts and the court sees no reason to discount the testimony. 5. Pfizer objects to alleged discrepancies regarding whether Arnold provided samples of a particular drug to Dr. Barbara Graham; per Small’s instruction. (¶¶ 129, 140.) Arnold’s declaration states that she informed Small she had “sampled” Dr. Graham three times since she requested the drug. The deposition testimony clarifies what Arnold meant when she .stated that she had “sampled” Dr. Graham. Arnold explained that she had visited Dr. Graham’s office at least three times and had either provided the sample medication as requested to Dr. Graham, provided it to a physician’s assistant in the same office, or arrived and was unable to meet the particular request on that visit because she lacked the requested sample. Whether a factfinder finds Arnold’s explanation of her statement credible is not for the court to evaluate at this time. The court finds no direct conflict in testimony to justify striking the evidence in question. 6. Pfizer objects to alleged inconsistencies between Arnold’s declaration and her deposition testimony concerning the content of her BOLI intake forms. (¶¶ 149, 192.) The declaration states that Pfizer’s characterization in its memorandum regarding Arnold’s satisfaction with Pfizer and the timing of the discrimination is false. The deposition testimony concerns the content of the documents filed with BOLI, wherein Arnold stated that the first date of discrimination was the same as the date of termination, June 17, 2009. Arnold argues that there is no conflict between the declaration and deposition, and further explains that she called BOLI to inform it that her intake forms contained errors. The court agrees that the content is confusing, but notes that Pfizer failed to explain the particular discrepancies or the manner in which the two testimony excerpts are materially in conflict and declines to strike it at this time. 7. -Pfizer objects to alleged inconsistencies in Arnold’s description of a half-day ride along she took with Small. (¶ 153.) The court agrees with Arnold that the descriptions are entirely consistent. • 8. Pfizer objects to alleged inconsistencies with respect to Arnold’s testimony regarding the May 27, 2009, meeting she had with Small and Lucherini. (¶¶ 157-164, 169-173.) Arnold’s declaration includes much more detail than her deposition testimony wherein she was unable to recall specific documents referred to during the meeting. Her declaration was prepared after she received those same documents through discovery, and Arnold contends that she was able to recall the meeting much more clearly with the aid of the produced documents. The statements do not conflict and the court sees no reason to strike the declaration- testimony. Other inconsistencies are not material on summary judgment. 9. Pfizer objects to allegedly conflicting testimony regarding Arnold’s June 2, 2009, communication with Lucherini following her diagnosis of ADD. (¶ 178.) The testimony is inconsistent in that Arnold states that she left Lucherini a voicemail whereas at deposition she states that she sent Lucherini an email. The court does not consider this inconsistency material for the purpose of creating an issue of fact at summary judgment, and declines to strike the evidence. 10. Pfizer objects to allegedly conflicting testimony regarding a June 5, 2009, communication between Arnold and Jennings. (¶ 181.) The only discernible inconsistency, however, concerns the man