Ewald v. Royal Norwegian Embassy (82 F. Supp. 3d 871, 2014)

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT

SUSAN RICHARD NELSON, District Judge.

This case arises out of a dispute concerning Plaintiff Ellen S. Ewald’s employment with Defendant Royal Norwegian Embassy (the “Embassy”). Plaintiff alleges pay discrimination, claiming that the Embassy violated the Equal Pay Act (the “EPA”), 29 U.S.C. § 206(d)(1), and the Minnesota Human Rights Act (“MHRA”), Minn.Stat. § 363A.08, Subd. 2. (Am. Compl. Counts III and VI [Doc. No. 104].) She also alleges that the Embassy violated Minn.Stat. § 181.64 by fraudulently inducing her to enter employment. (Am. Compl. Count II [Doc. No. 104].)

As an initial matter, the Court notes that the EPA is a strict liability statute, under which an employer’s discriminatory intent, or lack of such intent, is irrelevant. Bauer v. Curators of the Univ. of Mo., 680 F.3d 1043, 1045 (8th Cir.2012). The relevant inquiry under the law is whether the jobs in question are substantially equal that is, whether they require equal skill, effort, and responsibility. 29 U.S.C. § 207(d)(1); Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir.2002).

This matter was tried before the undersigned Judge of the District Court on April 21-24, 2014; April 28-May 2, 2014; May 13, 2014; and May 16, 2014. Subsequently, on July 31, 2014, the parties submitted Proposed Findings of Fact and Conclusions of Law [Doc. Nos. 327 & 328]. Based on the evidence presented at trial and all of the files, records, and proceedings in this matter, the Court makes the following Findings of Fact and Conclusions of Law, and enters the following Order for Judgment.

FINDINGS OF FACT

1. Plaintiff Ellen S. Ewald is a female United States citizen who resided in Norway for more than twenty years. (Ewald 57-83, 141.) She relocated to the Twin Cities when she accepted a job working for the Embassy, and continued to live in Minneapolis, Minnesota, through the time of trial. (Id.)

2. At all times relevant to this matter, the Embassy had a presence in the State of Minnesota at the Honorary Norwegian Consulate, 901 Marquette Avenue South, Suite 2750, Minneapolis, MN 55402. The Embassy has consented to the jurisdiction of this Court pursuant to Plaintiffs Employment Agreement (the “Agreement”) (J — 12—0001) and Defendant’s representations to this Court. (Tr. of 11/26/12 Hearing at 16-18 [Doc. No. 330].) According to the Agreement, Plaintiffs employment relationship is “governed by the laws [where] the Employee is employed.” (J-12-0001.)

Background and Framework for the “New Model Consulate”

3. In 2007, Norway announced that it was closing its Career Consulate in Minneapolis, Minnesota, largely for budgetary reasons. (Strpmmen 829; Yibe Dep. 37.) Norway’s career consulates are staffed with diplomatic personnel from the country’s diplomatic corps. (Strpmmen 827.) In contrast, Norway’s honorary consulates in the United States are led by American citizens. (Id.) Prior to announcing the closure of its Career Consulate, Norway had maintained an official diplomatic presence in Minnesota for over a century. (Mueller 1119; see also Gandrud 496; Strpmmen 829-30.)

4. Announcement of the closing was met with substantial disappointment and opposition in the Midwest and Norway. (Móndale 604-05; Strpmmen 830.) Those opposed to the closing believed that closing the Career Consulate would diminish the longstanding ties between Norway and the Midwest. (Strpmmen 829-31.)

5. Several people within the Norwegian Ministry of Foreign Affairs (“MFA”) began crafting an alternative solution that would allow for Norway to maintain a strong, sustainable foothold in the Midwest. (Mykletun 1575-83; Hansen 1079.) Dr. Jostein Mykletun, then serving in the MFA as Deputy Director General in the areas of trade, innovation, business promotion, and research, was particularly involved in this process. (Mykletun 1563-64.)

6. Mykletun, along with persons in the Norwegian Ministry of Education and Research, had been previously involved in developing a 2005 document entitled “Strategy for Norway’s Scientific and Technological Cooperation with North America” (the “Strategy”). (Mykletun 1581; P161.)

7. The purpose of the Strategy was to strengthen Norway’s scientific and technological cooperation with the United States and Canada. (P161-0005.) In so doing, the Norwegian government hoped to raise Norway’s aggregate spending on research and development (“R & D”) and to improve the quality of Norwegian research. (Id.) The authors of the Strategy identified three primary objectives:

1. The Strategy will contribute to the long-term escalation of R & D collaboration with the United States and Canada.

A. More Norwegian researchers and research recruits will spend time in the U.S. or Canada, and more researchers and research recruits from these countries will have comparable stays in Norway.

B. Norway’s trans-Atlantic collaborations on R & D projects will expand, bilaterally or through projects involving parties from several countries.

C. Norwegian research and Norwegian business and industry will receive more and faster access to research results, knowledge, and expertise from the U.S. and Canada.

2. The Strategy will help enhance the quality of Norwegian research.

A. More collaboration with North America will stimulate the revitalization of Norwegian research, improving the quality and efficiency of researcher training.

B. Priority will be given to fields of research and groups that maintain high quality standards.

3. More R & D collaboration with the United States and Canada will contribute to more knowledge-based economic development in Norway.

A. More partnerships will develop for the purpose of innovation and R & D-based economic development.

B. More people from Norwegian research, industry, the authorities, and others will become familiarized with relevant groups for research and economic development in North America, with a view to augmenting entrepreneurship in Norway.

(Id. at P161-0006.)

8. Because of Mykletun’s previous involvement in developing the Strategy, he was invited to participate in the effort to chart an alternative course for Norway’s Consulate in Minnesota. (Mykletun 1576.) Mykletun, who had attended Macalester College in St. Paul many years earlier, had close connections with Minnesota as well as with his employer, the MFA. (Mueller 1124.) Jeffrey Mueller, then the President of the Norwegian-Ameriean Chamber of Commerce (“NACC”) in Minneapolis, credited Mykletun with shepherding the Norwegian-Ameriean community in the Midwest through the process of understanding and supporting an alternative Consulate. (Mueller 1126-27.)

9. Mykletun met with members of the Norwegian-Ameriean community who were opposed to the closing of the Career Consulate and discussed an alternative approach to the Consulate that would maintain Norway’s significant presence in the Midwest. (Mueller 1127.) In terms of funding, Mykletun suggested that collaborative funding among different Norwegian government ministries would demonstrate widespread “buy-in,” and would show that the Norwegian government remained committed to the Midwest, even though it had decided to close the Career Consulate. (Mueller 1127-28.)

10. As a result of this effort, a “new model” for an honorary consulate was developed for Minneapolis (the “Honorary Consulate” or the “New Model Consulate”). (Móndale 606-07; Strpmmen 831— 35; Gandrud 969-70.) The New Model Consulate was designed to build upon and strengthen the relationship between the Midwest and Norway through focused efforts to increase collaboration in two key strategic areas: (1) business and innovation; and (2) education and research. (Gandrud 503, 1006; Móndale 605-06; Mykletun 1576-79, 1581-83.) The New Model Consulate was an outgrowth of the Strategy, as well as an outgrowth of a bilateral agreement on research and technology between Norway and the United States. (Ewald at 86, 90; P-161; see also Mykletun 1617-18.)

11. Two expert positions in the New Model Consulate were developed to drive collaboration in these two strategic areas: (1) an Innovation and Business Development Officer (the “Innovation and Business Position”); and (2) a Higher Education and Research Officer (the “Higher Education and Research Position”). (Mykletun 159091.)

12. Mykletun discussed his vision of the New Model Consulate with members of the Norwegian-Ameriean business community in Minnesota, including Lois Quam and Marius Hansen. (Hansen 1078, 1102.) Quam and Hansen were colleagues who were actively involved in the Norwegian-American community. (Hansen 1076.) Hansen also had served as a board member of the NACC. (Hansen 1077.) In the course of their meetings and conversations about the New Model Consulate, Mykletun indicated that the two expert positions would collaborate in certain areas. (Hansen 1081.) Hansen explained that the two positions represented “intersecting circles” of education and business, which both included the commercialization of research. (Id.) Based on Hansen’s recollection of these conversations with Mykletun, he understood that the two positions were parallel and equal. (Id.) Hansen held this belief because the intention behind the two positions was the same to foster relationships between the Midwest and Norway. (Hansen 1081, 1101.) At trial, Mykletun testified that the two positions were equally important. (Mykletun 1589.) The Higher Education and Research Officer was tasked with fostering relationships between universities in the two regions, while the Innovation and Business Development Officer was tasked with fostering relationships between businesses in the two regions. (Id.)

13.Norway’s then-Minister of Foreign Affairs, Jonas Gahr Stre, announced the concept of the New Model Consulate in a March 2008 speech at the Humphrey Institute in Minneapolis. (Mykletun 1576; Nash 533.) During Stre’s speech, he addressed many of the concerns of those opposed to the decision to close the Career Consulate. (Nash 534.) The Foreign Minister emphasized that the New Model Consulate would provide potential collaborations between business and education, in Norway and Minnesota. (Nash 534.) Based on Stre’s remarks and the remarks of other high-level Norwegian government ministers who visited Minnesota in the spring of 2008, it was understood among members of the Norwegian-American community that encouraging research-based innovation would be one of the most important tasks of the New Model Consulate. (Mueller 1114^15.)

14. Because of budget constraints, the MFA sought the funds needed to finance the two expert positions from other institutions in Norway. (Strpmmen 834-35; Mykletun 1576-77, 1583, 1590-91.) The MFA solicited various Norwegian institutions and government agencies with existing or potential interests in the Midwest to make an investment in funding the positions. (Mykletun 1583-84.) The MFA explained that the positions could support the goals of the respective institutions with little financial risk. (Id.)

15. Ultimately, six Norwegian institutions (the “Stakeholders”) participated in the funding of the expert positions at the New Model Consulate, each agreeing to provide 250,000 Norwegian Kroner (“NOK”) per year (a total of 1.5 Million NOK per year). (Berg 1239; Mykletun 1586-87, 1599; Johne Dep. 53-54.) The Stakeholders were: (1) the Ministry of Education and Research; (2) the Research Council of Norway; (3) the Norwegian Association of Higher Education Institutions; (4) the Ministry of Agriculture; (5) SIN-TEF, an independent, commercial research and development institute; and (6) Innovation Norway, an institution that provides consulting, market analysis, and risk-mitigation services to small- and medium-sized businesses in Norway. (J-6-0001; Mykletun 1586-87; Finborud Dep. 18-20; Johne Dep. 53-54; Ewald 88; Berg 1234-37.) Innovation Norway, which has offices throughout the world, evolved out of the combined efforts of several Norwegian government ministries to create private-public partnerships aimed at, among other things, assisting Norwegian-based businesses to expand abroad. (Nash 532.)

16. The Stakeholders also were charged with (1) guiding the two experts by way of an advisory committee, or “Steering Committee” (Berg 1245, 1304-1805; P-11-0001); and (2) “inform[ing] [the two expert officers] about their priorities.” (Finborud Dep. 26-27.) Each Stakeholder appointed a representative to serve on the Steering Committee. (Berg 1306-07; P-11-0001; Finborud Dep. 16-20, 26-27.) Liv Mrch Finborud, a senior MFA advisor, was appointed Chair of the Steering Committee. (Berg 1251-52; Fin-borud Dep. 15-16.)

17. The New Model Consulate project required Stakeholders to deposit their financial contributions with the Embassy in Washington, D.C. (Strpmmen 836.) The Embassy was tasked with administering the Stakeholders’ financial contributions because the persons hired for the two expert positions would be the Embassy’s employees. (Id.) Although the interests of a specific Stakeholder could be more closely aligned with one expert position, the Stakeholders contributed to the project as a .whole. (Berg 1245, 1320-21; J-23-0002.) This funding covered the salaries, travel expenses, and benefits for the two expert positions. (Finborud Dep. 21-22.) Although the Stakeholders’ role with respect to the expert officers was important, Norway’s Ambassador to the United States at the time, Wegger Strpmmen, had ultimate responsibility for employment decisions regarding the two officers. (Strpmmen 839.)

18. Because the New Model Consulate presented a novel and untested structure and concept, the Stakeholders’ financial commitment was limited to an initial three-year trial term, with the possibility of either ending or extending the terms of the expert positions after three years. (Strpmmen 841; Berg 1245-46; P-11-0001; Finborud Dep. 20-21; Ewald 313, 485.) Funding beyond the trial term depended upon whether the Stakeholders believed that the benefits from the work of the expert officers justified further investment. (Berg 1366-67.)

19. In addition to the two expert positions, the New Model Consulate required the appointment of an Honorary Consul General, the selection of whom was critically important. (Strpmmen 831.) Following the announcement of the selection of Vice President Walter Móndale as the Honorary Consul General, opposition surrounding the decision to convert the Career Consulate to an Honorary Consulate subsided. (Id.)

20. In addition to Honorary Consul General Mondale, Gary Gandrud was appointed to serve as Honorary Consul for the Consulate beginning in August 2008. (Gandrud 495, 500.) In his role as Honorary Consul General, Vice President Món-dale functioned as the Consulate’s public face, while Gandrud handled the operational details. (Mondale 603.) When Vice President Mondale later resigned as Honorary Consul General, effective January 2010, Gandrud became Honorary Consul General. (Gandrud 964-65.) Both Vice President Móndale and Gandrud were volunteers who were not paid for their work at the Honorary Consulate. (Gandrud 780, 965-66.)

21. Ambassador Strpmmen testified that his role in the New Model Consulate involved: (1) raising money for the New Model Consulate’s budget; (2) supporting the Honorary Consul General; and (3) keeping the Stakeholders happy. (Strpmmen 835, 841, 843.) The Embassy’s Chief Deputy at the time, Aud Kolberg, asked Embassy staff Elin Rognlie, then the Minister Counselor for Economic Affairs, and Dr. Berit Johne, Counselor for Science at the Embassy, to assist with launching the New Model Consulate. (Rognlie 1398.)

Job Postings and Hiring Committee

22. In consultation with the Stakeholders, the MFA developed job descriptions, which described the goals and expectations for the two expert positions. (J-2-0002-03; Gandrud 970; Mykletun 1583-88; Johne Dep. 33-36.) Mykletun’s involvement in developing the New Model Consulate had also included working on “pitch documents” and “keywords” for the job postings, as well as funding for the positions. (Mykletun 1576-77; D-2-0017-30; D-4-0003.) On July 3, 2008, Mykletun posted the final announcement for the Minneapolis New Model Consulate’s expert positions. (J-2-0001-04; Mykletun 1638.) The postings described both the Higher Education and Research Position and the Innovation and Business Position as full-time, officer-level positions. (J-2-0002-4.) Mykletun did not consider one expert position more important than the other. (Mykletun 1588-89.)

23. Each expert position required similar professional experience and qualifications, and required either the ability to speak Norwegian, or a willingness to acquire a basic understanding of the language. (J-2-0002-03.) The Higher Education and Research Position required an advanced university-level degree, and the Innovation and Business Position required a university-level degree. (Id.) Both expert positions had almost identical responsibilities and duties and shared the important objective of strengthening relations between the Midwest and Norway within higher education and research, on the one hand, and innovation and business development, on the other. (J-10001-03; J-l-0016.) Each job description specifically referenced the “key Norwegian institutions with which the expert would have regular contact”: for the Innovation and Business Position, Innovation Norway and SINTEF; for the Higher Education and Research Position, the Norwegian Association of Higher Education Institutions and the Ministry of Higher Education and Research. (Id. at 0002-03.) Perhaps most importantly, both positions had precisely the same goal to focus on opportunities for collaborative research and innovation, in order to develop commercial opportunities to justify the investment of the Stakeholders and ultimately benefit Norway. (P-161-0005; P-1610042; Mykletun 1581-83; Nash 548, 552-53; Gandrud 580-81, 756; Móndale 609-10; D24-0004; D-24-0009.)

24.Kermit Nash, a corporate attorney in Minneapolis with strong ties to the Norwegian-American business community and a member of the NACC, testified that the role of both positions was to serve the interests of Norwegians coming to the United States, and in order to best accomplish that, the two positions were “inextricably linked.” (Nash 552.) During his testimony, Nash further discussed the inextricable link between business and education in Norway, in the context of innovation and collaboration. (Nash 551.) Nash was familiar with the Norwegian government’s objectives concerning expansion into the United States business market through his attendance at NACC-spon-sored events in the Midwest and Norway, and through his professional experience in assisting Norwegian research-based innovation companies to enter the United States market. (Nash 529-31.) Nash’s Norwegian corporate clients include academically well-credentialed business people who develop various technologies for commercial use. (Nash 535.) Nash explained that unlike American entrepreneurs, Norwegian entrepreneurs are largely drawn from university settings. (Nash 534.) The Norwegian government supports the commercialization efforts of research-based innovation by funding early-stage companies either with equity, or through research grants. (Nash 53536.) Nash testified that not surprisingly, research and innovation business facilities in Norway house state-funded research projects. (Nash 534.)

25. With the exception of the specific focus area, Defendant’s postings for the two expert positions outlined almost identical responsibilities, including but not limited to:

A. Working with a counterpart at the Embassy in Washington D.C., other key staff at the Consulate and relevant Stakeholders in Norway, towards the goals of advancing Norway’s strategies for the respective focus area within the Upper Midwestern United States.

B. Developing contacts between Norwegian and United States partners.

C. Proactively engaging in targeted networking with relevant colleagues and partners in the respective focus area.

D. Facilitating and planning visits to the Midwest by involved and interested Norwegian partners, as well as facilitating workshops and seminars of common interest.

(J-2-0002-03.)

26. The job postings did not include information regarding salary. (J-l-0001-02, 14-15.) Rather, the postings stated that the expert positions were limited to a three-year term, with the possibility of renewal. (J-2-0002-03; Ewald 383.) The postings included the names of contacts for each position. (J-2-0002-03.) The Innovation and Business Position contacts were Rognlie and Gandrud. (J-2-0002.) The Higher Education and Research Position contacts were Johne and Gandrud. (J-2-0003.)

27. Hiring the right person for each expert position was believed to be critical to the success of the New Model Consulate. (Mondale 689, 693; Rognlie 1424.) The experts needed to have knowledge and expertise of their respective subject areas, be able to work full-time, and have enthusiasm for achieving the goals of the Stakeholders. (Móndale 617-18; Mykletun 1590-91.) The experts would also need to be able to work effectively without close supervision. (Gandrud 1003; Berg 1304.) Neither the Honorary Consul General nor the Honorary Consul were physically present at the Consulate full-time, nor were they experts in the fields of business and research-based innovation or higher education and research. (Gandrud 780, 965-66, 1003; Carleton 1052.)

28. A committee (the “Hiring Committee”) was established to review applications, select finalists who would be interviewed, and make a hiring recommendation. (Rognlie 1400-01.) The members of the Hiring Committee were: (1) Johne, (2) Rognlie, (3) Vice President Móndale, and (4) Gandrud. (Móndale 609-10; Strpmmen 837-38; J-17-004.) Consistent with the job descriptions, Rognlie took the lead in screening the Innovation and Business Position applicants, and Johne took the lead in screening the Higher Education and Research Position applicants. (Rognlie 1399; Johne Dep. 56.)

29. In the process of planning the New Model Consulate, Gandrud contacted business people in Minnesota who were connected to the Norwegian-American community, including Marius Hansen and Lois Quam. (Hansen 1081-82.) Gandrud solicited input on the attributes and skills that the Hiring Committee should look for among the applicants, as well as thé type of questions to ask the interviewees. (Id.) Hansen did not view the two expert positions as distinctly different. Rather, he testified that the Hiring Committee was looking for “the same kind of person [for both positions], a person who can deal with people at a senior level, who can reach out, make connections, and find areas of potential collaboration here and in Norway.” (Hansen 1082.) In the course of these conversations, Gandrud also indicated to Hansen that the two positions were equal and would pay approximately $70,000 each. (Hansen 1089.) Gandrud also told NACC President Mueller that the positions were significant and would pay $70,000, which piqued Mueller’s interest in applying for the Innovation and Business Position. (Mueller 1137-38.)

30. NACC Member Kermit Nash also testified to his understanding that the two expert positions were equal an understanding that stemmed, in part, from his conversations with Gandrud, and, in part, from his conversations with applicants for the positions. (Nash 553-54.) Over coffee, Gandrud had described to Nash the similarities between the general roles of the two expert positions. (Nash 554.) And, applicánts had informed Nash that they had applied for both expert positions because they understood that the jobs commanded equal pay and work in the Consulate. (Id.) Nash testified that everyone in the Norwegian-American community familiar with the New Model Consulate understood that the two positions were equal, and that the experts would provide the same number of hours of service. (Nash 555.) In fact, NACC President Mueller testified that the focus of both positions was on building stronger collaborations between organizations in Norway and the Midwest. (Mueller 1137.)

31. In connection with advertising any local employment positions at Norwegian foreign service stations, selecting employees, and setting the salaries, the MFA provided guidance in a document entitled “Guidance for Model Employment Contracts for Local Employees” (the “Guidance”). (P-148.) “Local employees” are employees hired by the Norwegian Embassy within a host country, as distinguished from Norwegian employees and diplomatic staff who are sent from Norway to work abroad. (Strpmmen 827.) Persons charged with the responsibility of hiring local employees, such as at the Minneapolis Consulate, were to follow the procedures set forth in the Guidance. (P-148-00022; Strpmmen 860-63.) Accordingly, the Hiring Committee was expected to follow the Guidance. (Str0mmen 861.) Moreover, the Guidance explicitly provides that the top leaders in the MFA, including ambassadors, have the responsibility to ensure compliance with the Guidance. (P-148-0043.) Ambassador Strpmmen and Rognlie, as leaders in the MFA, agreed that they were obliged to ensure compliance with the Guidance. (Str0mmen 887; Rognlie 1490,1492.)

32. The Guidance provides that when hiring new staff, every foreign service station is to conduct an evaluation that includes a comprehensive consideration of each applicant’s education, work experience, and personal attributes in order to find the single applicant who is best qualified for the particular position. (P-148-0023.) The Guidance also requires that the selected individual be well qualified for the announced position, not just generally well qualified. (Id.) Ambassador Strpmmen agreed that the Embassy sought to hire the person who was the best fit for each expert position, not someone who had general qualifications for the job. (Str0mmen 863.)

33. The Guidance also provides that foreign service stations, like the Honorary Consulate, are expected to be mindful of the Norwegian . anti-discrimination laws during the application and hiring process. (P-148-0024-28; Strpmmen 864.)

34. As to the determination of salary, the Guidance provides as follows:

The salary shall be appropriate to the salary levels of the regional labor market for comparable positions. In order to find comparable market salaries, the station must collect salary data from relevant sources. For example, international companies, recruitment companies, public salary standards, public statistics, industry statistics and job announcements. The station’s established salary levels may be misleading for this purpose. In establishing salary where the individual resides for tax purposes, marital status and number of dependents shall not be taken into account.

(P-148-0033.) In addition, the Guidance provides that “local public salary regulations” are also a factor for determining an employee’s salary. (P-148-0034.) Ambassador Strpmmen expected the Hiring Committee to follow these salary establishment guidelines. (Strpmmen 867-68.)

35. Ambassador Strpmmen also testified that he expected that members of the Hiring Committee were aware of and had considered Minnesota’s pay equity law in the New Model Consulate hiring process. (Strpmmen 878.) However, no evidence was presented demonstrating that the Hiring Committee had in fact considered Minnesota’s pay equity law in setting the salaries for the expert positions.

36. As noted, the job postings did not include information regarding salary. (J-1-0001-02, 14-15.) Gandrud testified that prior to the interviews, he had received inquiries from several persons about the Innovation and Business Position. (Gan-drud 575, 972-73.) Gandrud further stated that when these persons were told the salary range for the Innovation and Business Position, they indicated that it was too low. (Id.) Gandrud c’ould not identify who had made such inquiries, referring to the callers as “Tom, Dick, and Harry.” (Gandrud 575-76.) Rognlie, the other contact for the Innovation and Business Position, reported receiving no such calls. (Rognlie 1449-50.) The Court considers any references to comments regarding the Innovation and Business Position salary made by unidentified callers to be unreliable hearsay.

37. Before the jobs were posted, the Embassy’s Counselor for Administrative and Consular Services, Jan Aage Larsen, asked, in a July 3, 2008 email, whether a proposed salary range of $60,000 to $70,000 would be acceptable for both expert positions. (P-6-0001-03; Gandrud 523, 971; Mondale 610; Rognlie 1449.) In a July 7, 2008 response email, Gandrud replied that that salary range would “be attractive” and would garner a “good representative response” for both positions because of the difficult state of the economy. (P-6-0001; Gandrud 523, 971-72.)

38. On July 9, 2008, Gandrud asked the Human Resources Manager at his law firm, Patricia Manalo, to briefly research the salary market for both expert positions. (Gandrud 576-77, 973; Manalo 252.) Gandrud told Manalo that he wanted an idea of the salary requirements for the two positions. (Manalo 255.) Gan-drud gave. Manalo copies of the job postings for the Higher Education and Research Position and the Innovation and Business Position. (Manalo at 255-56; Gandrud 582.) Manalo does not recall whether she reviewed any of the underlying information regarding the positions, including the Strategy or a bilateral agreement on research and technology between Norway and the United States. (Manalo 258-59.)

39. Gandrud did not provide Manalo with any information about the candidates or their then-current salaries, but Manalo concedes that if she were conducting this research as the official HR person in charge of hiring the two expert officers, she would have necessarily considered the candidates’ (1) prior experience; (2) prior education; (3) and prior salaries and/or the salary requirements, which she did not do. (Manalo 270-271, 274.)

40. Manalo used a website called salary.com to conduct her research. (J-3-0004-15; Manalo 276-77.) This website provides information regarding salaries for a large number of professions. (See Man-alo 276-77; J-3.) Because Manalo did not find any listed positions that matched the job descriptions that Gandrud had provided, Manalo looked for positions that appeared most similar. (Manalo 268, 276-77.) Manalo had previously used this method when looking for salary information for positions that did not squarely match a position for which salary data was available. (Manalo 257, 276.) Manalo testified that she is aware that the pay levels for expert positions within the Minnesota Department of Commerce and the Minnesota Department of Education are publicly available. (Manalo 257, 259, 262, 279.) However, Manalo did not look for this information when she conducted the research in question. (Id.) She also did not review the salaries of other consulates’ experts, or the salaries of other positions with foreign governments. (Id.) In total, Manalo spent approximately one hour on the salary search. (Manalo 256.)

41. Manalo provided Gandrud the results of her nominal research on July 10, 2008. (J-3-0001; Manalo 259.) Manalo gave Gandrud salary range information from a general query on the salary.com website for business and education positions entitled “Business Development Manager Jobs,” “Business Development Director Jobs by U.S. Region,” “Institutional Research Director Jobs by U.S. Region” and a “Researcher Ill-Academic” job. (J-3-0001-15; Manalo 276, 262-63.) This research incorrectly assumed that the two expert positions were for business people and academic researchers, respectively. Gandrud did not ask Manalo to search for salaries of similar employees in other embassies or consulates. (Gandrud 584.) Manalo believes that she printed out for Gandrud all of the documents that she reviewed in her search. (Manalo 259, 263.) Manalo conceded that the positions she pulled from salary.com were quite different from the job descriptions given to her by Gandrud. (Manalo 262, 267.) She also admitted that none of the search results were positions in the Midwest. (Id.) She considered her search to be an informal, “quick look at what [she] could find.” (Manalo 272.) While Manalo did what she was asked to do, this scattershot research provided no insight into the appropriate market salaries for the two expert positions.

42. Manalo concluded that the salary market range was from $70,000 to $79,000 for the Higher Education and Research Position and from $93,000 to $118,000 for the Innovation and Business Position. (J-3-0001; Gandrud 577-78.) Manalo testified. that her research was objective and not influenced by the gender of the applicants. (Manalo 270, 276.) In fact, she testified that when she conducted her research, she did not know who had applied for the positions. (Id.)

43. In Manalo’s trial testimony, after comparing the actual job postings for the expert positions against the salary.com positions, Manalo conceded that they were quite different. (Manalo 260-67.) The Higher Education and Research Position did not actually perform research; it brought research institutions and businesses together. (Manalo 264-266; 273; J-2.) Likewise, the Innovation and Business Position was not designed to generate business for a corporate entity; instead, it also brought businesses together. (Mana-lo 259-62; Davidson 2015-17.) Manalo admitted that if she were involved in hiring the two individuals, she would have conducted more research before settling on a salary. (Manalo 269-270.)

44. Gandrud also admitted that the Consular expert positions were quite different from the positions that Manalo had found on salary.com. (Gandrud 578.) Nonetheless, Gandrud believed that the information gleaned from Manalo’s one-hour search “was as close as he needed.” (Id.) Gandrud did not ever look to the most relevant market research what other embassies- or other state governments or federal entities were paying similar employees in the Twin Cities when setting the salaries for the Consular positions. (Gan-drud 584.)

45. Gandrud did not share the information that he received from Manalo with the Stakeholders, the Hiring Committee, or anyone else at the Embassy. (Gandrud 584; Strpmmen 902; Mondale 618; Rogn-lie 1481.) Thus, while Vice President Mondale was aware that some type of market survey or analysis had been performed, he did not see it at any point during the hiring process, or during his tenure as the Honorary Consul General. (Mondale 618, 649-50.) Similarly, Ambassador Strpmmen had no knowledge of what was done to find comparable market salaries and had no knowledge of the standards or statistics that were relied upon to set the salaries for the two Consular experts. (Strpmmen 868-69.)

Ellen Ewald

46. On July 3, 2008, Mykletun forwarded the job descriptions for both expert positions to his colleagues, including Ellen Ewald, for distribution to their professional networks. (J-2-0001; Ewald 76, 78, 83-84.) Ewald and Mykletun had been friends since 2002. (Mykletun 1566-67.) Mykletun was not soliciting Ewald to apply and was not otherwise involved in recruiting, screening, or hiring for the positions. (Mykletun 156667,1593-95.)

47. Ellen Ewald is a Minnesota native who holds a Masters Degree in Political Science from the Massachusetts Institute of Technology, and a degree in Comparative Politics (“Hovedfag”) from the University of Bergen in Norway, as well as a Bachelor’s Degree in International Relations & Scandinavian Studies and Foreign Studies from the University of Minnesota (graduating smnma cum laude). (J-4-0003.) Ewald is fluent in the Norwegian language, both spoken and written. (J-4-0004.) She has extensive professional experience in both education and business, and has held board positions in the United States and in Norway. (J-4-0003-04; Ewald 62-83.)

48. Ewald has received awards for her achievements, including recognition as one of “Norway’s Top 10 Most Successful International Women” in 2004. (J-4-0003; Ewald 79-80.)

49. Ewald was the founder and former president of the MIT Club of Norway, a business networking club comprised of business leaders, and alumni of MIT with a specific interest .in the area of government and industry collaboration. (Ewald 70-72.) She was also a co-founder, along with Mykletun and Finn Kristian Aamodt, of the University of Minnesota Alumni Club of Norway. (Ewald 81-83.) Her involvement with the MIT Club and the University of Minnesota Alumni Club expanded Ewald’s network in Norway and in the United States. (Ewald 83-84.)

50. Ewald had a successful private business career in Norway spanning more than a decade. (J-4-0004; Ewald 67, 73.) She worked as an executive for various corporations, and much of that experience was in the area of business evaluation and marketing, including network development. (Id.)

51. At the time that Ewald applied for the Higher Education and Research Position, she was the Chairperson and Marketing and Research Director of UnoPhone AS/UnoPhone Uganda, Ltd., where she had worked for five years. (J — 4—0004; Ewald 74.) UnoPhone AS was part of TM Holding AS/Venturos AD. (Ewald 74.) At the time that Ewald was contemplating whether to come to the United States and take the expert position with the Embassy, there were approximately four or five companies held by TM Holding, to which Ewald could have transitioned, in roles similar to that which she held at Uno-Phone, and at the same compensation. (Ewald 77-79; 476; Mikalsen 1195-96.)

52. Prior to UnoPhone, Ewald worked as the Manager of Business Network Development for TM Holding, as the International Project Coordinator and Manager for Norwegian Investor Forum/IT Forne-bu, and as the Account Manager of Business Alliances and Project Management for Oracle. (J-4-0004; Ewald 73-79.)

53. Except for IT Fornebu, all of Ewald’s former employers were private, non-government companies. (Ewald 68-69, 79.) In contrast, IT Fornebu was a 50/50 government/private industry business endeavor aimed at stimulating growth in Norwegian businesses and the economy, including initiatives in research-based innovation. (Id.) TM Holding/Venturos AS was a private equity group that invested in the IT Fornebu project. (Ewald 72-73.) Ewald’s role in TM Holding/Venturos AS was primarily in the area of business network development. (Ewald 73.)

54. Ewald’s total compensation at TM Holding/Venturos where she worked from 2000, through her acceptance of the Higher Education and Research Position with the Embassy was approximately 950,000 Norwegian Kroner (“NOK”). (Ewald 76-77, 475; Mikalsen 1197.) Depending on the exchange rate, 950,000 NOK is the equivalent of approximately $170,000 to $190,000. (Ewald 76; D-60-0010; see also, P-167-0001 (charting Ewald’s overall compensation during 2007 and the first nine months of 2008, prior to Ewald’s move to the United States and demonstrating that Ewald earned an overall compensation package worth approximately $190,000, annualized, in 2008).)

55. Ewald reviewed Mykletun’s July 3, 2008 email about the two positions at the New Model Consulate in Minneapolis/ (Ewald 89-90; J-2-0001.) She considered both expért positions “exciting” and “two sides of the same coin.” (Ewald 89.) Although she believed that she was qualified for both expert positions, she was particularly interested in the Higher Education and Research Position, because it represented a change from her work in business development for the preceding 15 years. (Ewald 105.) She also believed that the focus on research-based innovation was exciting and would put her at the cutting edge of technology, potentially spawning additional business opportunities for Norway. (Ewald 105.)

56. Prior to receiving the job descriptions for the two expert positions from Mykletun, Ewald was not looking for a new job because she was happy with her position as Chairperson for UnoPhone. (Ewald 77-78.) Neither Ewald, nor her then-domestic partner, now-husband, Ter-je Mikalsen, had any intention of leaving Norway to move to the United States. (Ewald 77-78; Mikalsen 1200.) They were well-established in Norway. Not only had they recently purchased and remodeled a home in Norway, but their family members also lived there, including Mi-kalsen’s eight grandchildren. (Ewald 77-78, 80, 83; Mikalsen 1200.)

57. Intrigued by the postings, however, Ewald showed them to Mikalsen. (Ewald 80-81; Mikalsen 1198-1201.) Although Mikalsen was struck by the similarity between the two expert positions, he believed that the Higher Education and Research Position was practically tailored for Ewald. (Id.) Mikalsen told Ewald, “wow ... if you apply, you’ll get it.” (Ewald 81; Mikalsen 1198-1199.) Although Mikalsen was excited for Ewald, he was unsettled by the prospect that Ewald might be offered the job, precipitating a move to Minnesota. (Ewald 80-81; Mikalsen 1200.)

58. Ultimately, however, Mikalsen supported Ewald’s interest in the position. Mikalsen viewed the expert position as an opportunity for Ewald’s career to take priority in their relationship (Mikalsen 1200), even if it meant that the couple would have to uproot themselves from Norway and move to the United States. (Ewald 96.) Mikalsen believed that Ewald could use her connections in Norway and in the United States to help further important research collaboration both in education and business. (Mikalsen 1200.)

59. On July 4, 2008, Ewald expressed her interest in the expert positions to Mykletun and asked to speak with him further. (J-2-0001; Ewald 89-90.) Myk-letun invited Ewald to his office at the MFA in Oslo to talk about the expert positions. (Ewald 90.) Mykletun never informed Ewald that he was talking to her as a friend only, and not as a representative of the MFA. (Ewald 95.) During the meeting, Mykletun indicated that the two expert positions were very substantive, focused positions. (Ewald 90-92.) Mykle-tun advised that the expert positions were for three-to-five-year terms. (Mykletun 1636-37.) The job descriptions, as well as the postings, also indicated a three-year commitment with a possible extension. (J-2-0002-3.) Although Mykletun explained to Ewald that the positions were limited-term appointments, he also expressed his hope that the New Model Consulate would ultimately succeed and that the expert positions would become permanent, as opposed to limited-term. (Mykletun 1636-37.) Accordingly, Ewald was under the impression that the positions involved a long-term commitment. (Ewald 90-92.)

60. Although Mykletun did not discuss the salary range for the positions (Mykle-tun 1598), he did inform Ewald that the positions would be equal and parallel (Ewald 91) and that the budget of 1.5 million NOK would be divided evenly to cover salary and travel. (Id.; Mykletun 1598-99.) These representations are consistent with what Mykletun told others in the Norwegian-American community. (Hansen 1081.) Mykletun also notified Ewald that the two expert positions should work as a team to achieve the ultimate objective of increasing research-based innovation. (Ewald 91.) Mykletun explained to Ewald that the purpose of the expert positions was to network and promote research-based innovation on behalf of Norway, because it was important for Norway to be connected and collaborate with research and business in the Midwest. (Ewald 93.)

61. During their meeting, Mykletun sensed that Ewald was excited about the prospect of moving back to Minnesota. (Mykletun 1605, 1617). Ewald’s parents and other family members live in the Minneapolis area, Ewald’s younger daughter was beginning college at the University of Minnesota, and her older daughter was also attending college in the United States. (Ewald 141, 385; Ex. P-23-0006.)

62. After speaking with Mykletun, Ewald spoke by telephone with Gandrud, because he was one of the two contacts for the Higher Education and Research Position. (Ewald 96-97.) Ewald told Gandrud about her business background, as well as her experience with the MIT Club of Norway and the University of Minnesota Alumni Club in Norway. (Ewald 97-98.) Ewald also discussed her background in research-based innovation and her enthusiasm for the Higher Education and Research Position. (Ewald 98.)

63. On July 17, 2008, Ewald applied for the Higher Education and Research Position. (J-4-0001-4.) Ewald received a very positive reference from Mykletun. (Johne Dep. 44.) Although both Ewald and Mykletun considered Ewald qualified for both expert positions, and although Mykletun encouraged her to apply for both, Ewald applied only for the Higher Education and Research Position because she thought it would be more interesting and enjoyable. (Ewald 95 105; Mikalsen 1201.) As Ewald later wrote to Ambassador Strpmmen, had she known of the better salary and terms that accompanied the Innovation and Business Position, she would have likely applied for it, as she possessed the necessary experience. (P-100-0001.)

Interviews

64. On September 2 and 3, 2008, the Hiring Committee interviewed approximately 11 applicants for both positions in Minneapolis. (Mondale 610.) During Ewald’s interview, the Hiring Committee and Ewald discussed Ewald’s background, as well as the objectives of the expert positions as being “equal” and “parallel,” and explained that the experts would function as a team, because both research and commercialization were important to achieve Norway’s goals. (Ewald 107-110; see also Johne Dep. 37-38, 49, 94 (stating that the positions were meant to be parallel and operate as a team).) Ewald’s recollection about the expert positions being equal, parallel, and working together as a team (albeit in different focus areas) is consistent with what Gandrud told others in the Norwegian-American community. (Hansen 1100-01; Nash 553-555; Mueller 1137.)

65. Dining Ewald’s interview, the Hiring Committee discussed the fact that capitalizing on the intersection of research, business, and innovation is an important policy objective for Norway; and the Committee discussed the importance of the internationalization of students and business. (Ewald 108.) The Committee members further addressed the commercialization of research, noting that collaboration between the two expert positions would help Norway develop research opportunities. (Ewald 109.) Additionally, the Hiring Committee members explained that the expert officers would engage with Science Week, an annual conference aimed at fostering connections in science and research between Norway and the United States. (Id.) The Hiring Committee members also addressed the importance of student exchanges. (Ewald 109-110.)

66. At the time of the interviews, the salaries for the two positions had not been determined. (Mondale 673-75.) During Ewald’s interview, members of the Hiring Committee discussed a general salary range of $40,000 to $70,000 for both expert positions. (Ewald 110-11; Gandrud 710.) This range was typical for other locally-employed Embassy officer-level employees and other consular officers of Norway in the United States at that time. (Vibe Dep. 56; Berg 1282.) Gandrud had commented on this general $40,000 to $70,000 pay range to others in the Norwegian-American community. (Hansen 1100-01; Nash 553-55; Mueller 1137.)

67. Ewald was not dissuaded by the salary range and remained enthusiastic about the Higher Education and Research Position, feeling “so sure that this was a good job for [her].” (Ewald 390; 108-09.) Gandrud recalled that Ewald “had the highest interest ... of any of the applicants for either job[ ].... [H]er enthusiasm was infectious and she made the same impression on all” of the Hiring Committee members. (Gandrud 977.)

68. The Hiring Committee members did not ask the interviewees about their salary history. (Id.) There was no discussion of health insurance or other benefits at the interviews. (Gandrud 792-93.) Ewald recalled that Gandrud seemed apologetic about the salary, but told her that “they,” presumably the Embassy, would try to compensate both experts at the top of the salary range. (Ewald 110-111.)

69. Ewald was familiar with the salary and compensation system for Norwegian public employees. (Ewald 62-63.) Her understanding was that employees of the Norwegian government are compensated through a ladder system called “Lpnnstrinn,” in which employees are placed at a specific level of compensation appropriate for their level of employment. (Ewald 111-112; Strpmmen 828.) Ewald believed that the Lpnnstrinn system would apply to the expert positions. (Ewald 111— 12.) That, coupled with the statements by Gandrud regarding the salary range, led her to believe that neither the salary, nor salary range, were negotiable. (Ewald 111-12.) In actuality, while the Lpnnstrinn applies to most Norwegian government employees, the Embassy does not follow the Lpnnstrinn for locally-employed employees, such as the expert officers. (Strpmmen 828.)

70. After Ewald’s interview, Gandrud contacted her, telling her that the Hiring Committee was enthusiastic about her and that she was one of the top candidates. (Ewald 113.) Vice President Mondale considered Ewald “a rare find.” (Mondale 612.) The Hiring Committee had been particularly impressed with Ewald’s passion for the job, along with her connections, knowledge, and experience. (Rogn-lie 1410.) Gandrud believed that Ewald would readily accept the Higher Education and Research Position, if it was offered to her. (Gandrud 740.)

71. Anders Davidson learned of the Innovation and Business Position through a job posting in his St. Olaf College alumni newsletter. (Davidson 1911.) At the time, Davidson was employed as a Business Development Manager in International Operations at 3M and was not looking for another job. (Davidson 1903.) His position at 3M required a great deal of travel. (Davidson 1905.)' Davidson was attracted to the expert position because he believed it would provide a lifestyle change, allowing him to spend more time with his young children and shorten his work commute. (Davidson 1908-09; 1924.) While Davidson possessed Norwegian ancestry and an affinity for Norway (Davidson 1908), Davidson did not speak or write Norwegian; in fact, he had never visited Norway. (Davidson 1987.) Davidson was also unfamiliar with the Strategy and had never seen the document until it was presented to him as an exhibit at trial. (Davidson 2010.)

72. Davidson received an MBA from the University of Minnesota. (Davidson 1884-85; J-5-0002.) Prior to working at 3M, he had also worked at Microsoft. (Davidson 1885-86.) Based on his experience at 3M and in business school, Davidson had experience in analyzing and assessing companies and business plans. (Davidson 1898-1902; 1907.)

73. Davidson applied for the Innovation and Business Position “at the last minute” on July 25, 2008. (Davidson 1910; J-50001.) The Hiring Committee selected Davidson as a candidate to interview based on his business background and experience, particularly his international work at 3M. (Rognlie 1404-06.)

74. Davidson interviewed with the same Hiring Committee members as Ewald: Vice President Mondale, Gandrud, Johne, and Rognlie. (Davidson 1911.) Davidson recalls that the interviewers stated that the salary range was $40,000 to $60,000 or $70,000. (Davidson 1913.) When told of the salary range, Davidson made no negative comment, although he testified that he felt that the salary was “unrealistically low.” (Davidson 1913.)

75. During Davidson’s interview, he did not volunteer information about his day care concerns for his daughter. (Gandrud 722-23; Davidson 1913.) Nonetheless, Gandrud believes that during the interview there was “a sign” that Davidson was concerned about child care. (Gandrud 722-23.) While Davidson does not believe that he ever specifically referred to “day care” in subsequent conversations with Gandrud, he admitted that after the interview he did discuss working three days per week, in order to personally provide child care for his daughter two days per week. (Davidson 1996-98.) The Hiring Committee made no inquiry of Ewald’s prior salary or her family situation. (Vibe Dep. 83-84; Rognlie 1463-64; Mondale 626-27.)

76. Based on the interview, Gandrud gave Davidson positive marks, indicating in his interview notes that Davidson was “fresh,” “eager” and “lower $.” (D-5-0006.) Vice President Mondale testified that Davidson was “young and strong.” (Món-dale 612.) Following the interview, Davidson remained interested in the position, but was privately concerned about the suggested salary range. (Davidson 1914.)

77. After the interviews, the Hiring Committee concluded that Davidson was the top candidate for the Innovation and Business Position. (J-6-0002; Mondale 612, 629-30, 687-89; Gandrud 978; Rogn-lie 1404-06.) Although Gandrud had not discussed compensation directly with Davidson, Gandrud was concerned that the salary range for the Innovation and Business Position might be too low and that it might affect Davidson’s willingness to accept the position. (Gandrud 575-76; 972-73; 981-82; D-50006, D-5-0008.)

Communications on September 4, 2008

78. On the morning of September 4, 2008 the day after the interviews were completed at approximately 9:20 a.m., Gan-drud emailed Rognlie and Johne, copying Ambassador Strpmmen, regarding Ewald. (D-6-0001.) Referring to the Hiring Committee’s “clear and obvious consensus” that Ewald was their, choice for the Higher Education and Research Position, Gandrud “urgently requested]” that Rognlie and Johne recommend Ewald to the Stakeholders for approval. (Id.) Gandrud sought a quick response so that Vice President Mondale, who was in Oslo at the time, could introduce Ewald as the new Higher Education and Research Officer at an upcoming meeting with the Stakeholders. (Id.) In addition, if Ewald could be announced quickly, her name and new title could be prominently featured in materials for an upcoming' United States-Norway forum. (P-7-0004.)

79. Shortly after receiving the email, Ambassador Strpmmen telephoned Gan-drud to discuss the fortuitous coincidence that Vice President Mondale was in Oslo and might be able to announce the hiring of Ewald during his visit. (Id.) Ambassador Strqmmen followed up with an email to Rognlie, Johne, and others, asking, “Is it possible to get this done so fast?” (P-7-0007.) The Ambassador stated, “We can at least come with an offer in any case....” (Id.) He also inquired, ‘Who must be notified in Norway? Who makes the formal decision? Is it not the Embassy?” (Id.)

80. In an email sent at 10:07 a.m. that same day, Johne responded to Gandrud and Ambassador Strpmmen. (P-7-0001-2.) Johne indicated that she and Rognlie had created a draft document, ranking the candidates, focusing on the number one candidates for both positions. (Id.) She stated that the report on the selection and ranking of candidates would be completed within two hours and would be sent to Gandrud. (Id.) Johne indicated that once she received Gandrud’s feedback, the document would be transmitted to Norway-later that same day in order to give the Stakeholders an opportunity to review it. (Id.) Johne directed, “if the Advisory Board approves Friday [9/5/08], then [Vice President] Mondale may announce the two names, IF THEY have been informed.” (P-7-0002.) She further advised that Gan-drud should contact the two candidates,, informing them that they were the top choices, subject to final approval. (Id.) She also indicated that “the embassy will check salary and benefits in more details [sic] today, for Gary to inform when you contact them.” (Id.)

81. That same morning, Gandrud telephoned both Ewald and Davidson. (Gan-drud 719-20.) In his conversation with Davidson, Gandrud indicated that Davidson was the top candidate for the Innovation and Business Position, and asked him what he thought about a salary of $60,000. (Gandrud 720, 722; Davidson 1915.) Gan-drud did not have authority to make an official salary offer at the time and told Davidson as much. (Gandrud 720-21, 984). Davidson did not interpret the $60,000 figure as a formal offer. (Davidson 1992). Rather, Davidson felt that Gandrud was “sort of [a] courier” and that he was expressing an initial level of interest in Davidson and “checking” in about the salary.” (Id. at 1992-93). At trial, Gan-drud deduced, by process of elimination, that he must have unilaterally made the decision to suggest the $60,000 figure to Davidson. (Gandrud 720, 722; Strpmmen 872.) In fact, some members of the Hiring Committee were not aware that Gandrud had initially suggested a salary of $60,000 to Davidson. (Rognlie 1447.)

82. In response to Gandrud’s question about salary, Davidson, who believed that the salary range was limited, did not demand a higher salary. (Davidson 1918.) Rather, Davidson asked whether it would be possible to work on a part-time basis, three days per week, for $60,000. (Davidson 1916.) Davidson told Gandrud that his base salary at 8M was $108,000. (Gandrud 721, 986; Davidson 1916-18; P-7-0001.) Based on his then-current salary at 3M, Davidson believed that if he were able to work three days a week for $60,000, his wife could work while Davidson stayed home two days a week with their youngest child. (Davidson 1917.) Davidson testified, “my response to them was not, I’m not going to work for 60, you have to pay me at least 100, I said, let’s work within the 60 budget, can we do something else[?]” (Davidson 1921.) Gandrud responded that he would take Davidson’s proposal back to the decision-makers, but that the three-day-a-week arrangement would not work. (Davidson 1917; Gan-drud 721.) A part-time arrangement was not considered an option because both expert positions were intended as full-time positions. (Gandrud 721-22; Mondale 627, 689; Davidson 191819.)

83.Although Gandrud asked that Davidson’s salary reflect the salary market rate for a similar position, Gandrud conceded at trial that Davidson was not applying for employment in the business community. (Gandrud 736.) Gandrud also conceded that Davidson did not request that Gandrud adjust his salary to reflect market rates. (Gandrud 735-736.) And, Davidson could not recall whether Gan-drud asked him about his salary at 3M, or whether, unprompted, he shared his then-current salary of $108,000. (Davidson 1918.) Therefore, Gandrud decided to follow-up about child care during his telephone conversation with Davidson. (Gan-drud 722-23.)

83. At approximately 11:30 a.m. that same morning, Gandrud emailed Johne, Rognlie, Ambassador Strpmmen, and others, raising the issue of salary for Davidson:

Anders Davidson has been informed. Ellen Ewald has also been informed. Both are showing the same enthusiasm that they demonstrated to us in the interview. Davidson, after speaking with his wife, did express discomfort with the salary and told me that his base salary is currently $108,000. While I told him that I do not intend to negotiate with him, I pointed out to him that we were sensitive [sic] the salary issue and intended to speak with him after he had discussed the matter with his family. With young children, day care, etc., he has a legitimate concern. [Honorary Consul General] Mondale shares this concern as well. Anders stated that the salary level would not diminish his desire for this position but it is his only concern.

As you know, our market research here at Faegre concluded that the Education and Research position was hitting the general market for that position. They concluded that the Innovation and Business Development position was below the low end of the market for similar skills. While not wanting to complicate this any further, I want this part of your consideration. We will not negotiate with him but we should be fair to him, the position and to ourselves.

(P-7-0001.) The “market research” referenced in the email referred to the one-hour search performed by Manalo. (Gandrud 724.) A