Allen v. HP Enterprise Services, LLC, No. 2:2016cv00147 - Document 55 (E.D. Ky. 2018)

Court Description: MEMORANDUM OPINION & ORDER: That defendant's motion for summary judgment 33 is GRANTED. A separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 9/7/2018.(ECO)cc: COR
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Allen v. HP Enterprise Services, LLC Doc. 55 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON CIVIL ACTION NO. 2:16-CV-147 (WOB-CJS) ASHLEY ALLEN PLAINTIFF VS. MEMORANDUM OPINION AND ORDER HP ENTERPRISE SERVICES, LLC DEFENDANT This diversity employment matter involves claims of wagebased sex discrimination brought pursuant to the Kentucky Civil Rights Act, K.R.S. § 344 et. seq. alleges that Hewlett Packard Ashley Allen (“Plaintiff”) Enterprise Services, LLC (“Defendant”) compensated Plaintiff’s male subordinates and peer managers with higher pay increases throughout the duration of her nearly twenty-year career with Defendant. This matter is now before the Court on defendant’s motion for summary judgment. (Doc. 33) The Court previously argument on this motion and took it under submission. and the parties submitted supplemental memoranda. heard oral (Doc. 51), (Docs. 52, 53). After further study, the Court now issues the following Memorandum Opinion and Order. Factual and Procedural Background 1. Defendant’s Corporate Structure Defendant is a multi-national enterprise incorporated in the state of Delaware solutions to a which provides information technology variety of corporate customers. 1 and Defendant’s internal corporate structure is highly-complex creating difficulty in ascertaining where a particular employee falls within the hierarchy of a given work group. A written and visual representation of this structure follows to aid comprehension of this case’s specific facts. a. Job Family Group The job family group is the broadest grouping under which smaller job families fall within Defendant’s corporate structure. Examples include: “Services” or “Human Resources.” (Doc. 40-6, PageID# 996, 1044.) b. Job Family A job family refers to specific job divisions within a broader job family group. In this case, the applicable job 1 About Hewlett Packard Enterprise, (last visited May 17, 2018). 2 family group is referred to as Information Technology Organization (“ITO”) Service Delivery. 2 c. (Id. at 1044.) Job Categories Within each job family three general job categories exist. They are: (1) Support Employees can, and (2) Professional do, transition between throughout the duration of their employment. d. (3) Manager each category (Id. at 1006.) Job Category Subdivisions Each job category subdivides into smaller groups based on the employee’s experience, skill set, and decrease in the need for supervision. (Id. at 1011.) Within the ITO Service Delivery job family, job category subdivisions are listed as follows from least to most experienced and from top to bottom: Support Professional Manager Base Entry Supervisor I Primary Intermediate Supervisor II Core Specialist Manager I 2 The ITO Service Delivery group provides “expertise for IT infrastructure (e.g. servers, network), ([ ] (SAP)], and related services (e.g. business continuity) throughout the lifecycle of a deal contractually established terms and conditions and established technical standards. (Doc. 40-6, PageID# 1044.) 3 Senior Expert Advanced Master e. Manager II Corporate Structure Overview (Graphic) Services Job Family Group: Job Family: Information Technology Organization Delivery Job Categories: Support Professional Manager Base Entry Supervisor I Primary Intermediate Supervisor II Core Specialist Manager I Senior Expert Manager II Advanced Master 2. Defendant’s Compensation and Pay Increase Scheme Defendant is a “pay-for-performance” enterprise meaning that employees do not receive automatic cost of living or pay increases. (Id. at 994.) Rather, Defendant awards merit increases at its 4 discretion with job performance being the central criterion for such pay increases. (Id.) The nature of a new employee’s hiring dictates what their base salary will be when joining Defendant. acquired via merger, Defendant salary. (Doc. 40-6 at 1040.) matches the If the employee is employee’s prior If Defendant hires an employee outside of the merger context, Defendant considers local market conditions, prior experience, and locality pay when establishing a base salary. 3 (Id. at 993.) a. Pay Bands Every employee receives a specific job title that corresponds to a job category within a particular job family. Each job title and job category has a salary grade that is broken down into five different pay bands. 4 (Id. at 1016.) Hypothetically, an employee could be coded as the following: 3 Although Defendant includes locality pay allocations in determining an individual’s base starting salary, subsequent changes in locality may or may not give rise to additional compensation. (Doc. 40-6, PageID# 1020.) 4 The pay bands, themselves, are determined by looking at competitors’ bands and salary ranges. (Doc. 40-6 at 1022.) 5 Specific Job Title: Job Category: Service Manager Manager I Salary Grade: Salary Range: M27 $90,000150,000 The pay bands overlap, but fundamentally work in the following manner: i. ii. iii. iv. v. Pay Pay Pay Pay Pay Band Band Band Band Band I: Beginning to 20% of salary range II: 20-40% of salary range III: 40-60% of salary range IV: 60-80% of salary range V: 80-100% of salary range (Id. at 1017.) Although outliers do exist — with employees falling below Band I or above Band V in particular instances — Defendant makes a concerted effort to pool employees within the middle of Band III. (Doc. 40-1, PageID# 689; Doc. 40-6 at 989.) b. Pay Bands (Graphic) Hypothetical Salary Range: Depending on performance reviews, an employee falling within a $90-150,000 pay range may fall within the following pay bands throughout their employment tenure: Salary Band I $90$102,000 Salary Band II $102,000$114,000 Salary Band III $114,000$126,000 6 Salary Band IV $126$138,000 Salary Band V $138,000$150,000 c. Pay or Merit-Based Increases As noted, employees become eligible for merit or performancebased increases subject to Defendant’s funding and internal evaluation process conducted at the end of Defendant’s fiscal year - typically in November. The threshold consideration Defendant’s profitability during the preceding fiscal year. 40-6 at 1020.) is (Doc. If profits are sufficient, Defendant allocates specific sums for merit-based increases to managers to distribute to their subordinates or direct-reports. (Doc. 40-4, PageID# 895.) These allocations are colloquially referred to as “pots,” and each manager possesses full autonomy to allocate the pot among their direct reports. 5 (Id. at 896.) At the same time, managers conduct a performance review of their direct reports. Each direct report is rated on a five-point system as follows: i. Significantly Exceeds Expectations ii. Exceeds Expectations iii. Achieves Expectations 5 The size of each allocation pot varied between managers based, in part, on that manager’s number of direct reports, their experience levels, and gross salaries. (Doc. 40-4 at 932.) 7 iv. Partially Achieves Expectations v. Did Not Achieve Expectations (Doc. 40-3, PageID# 852-53.) Direct reports are only compared with members of a peer group to ascertain their performance rating (e.g. Masters are only compared with fellow Masters). (Id. at 856). Once managers assess their direct reports’ performance, calibration meetings occur to determine how to finalize ratings and distribute the merit increase pot in a meaningful manner. (Doc. 40-4 at 928.) At this point, funds could be transferred between managers’ pots to ensure that high performing direct reports on teams with limited budgets could receive an increase commensurate with their performance, especially where those direct reports were at the low ends of salary bands. (Id. at 929.) To aid their determinations, managers have access to their direct reports’ salary data. Peer data that compare managers to each other are not available. (Id. at 902, 934.) Given the interplay between pay band and merit increase system information, direct report employees may earn more than their managers. For example, a high performing employee with a Professional-coded job at the Master level may earn more than a 8 similar performing Service Manager coded at the M1 level because Defendant has assessed higher pay bands for Master-level jobs and values a technical skill set over general managerial skills. 3. Plaintiff’s Employment Between August 1998 and April 2015, Defendant Plaintiff in both technical and managerial positions. employed (Doc. 40-1 at 641.) From 1997-2005, Plaintiff was employed as a ProfessionalExpert after being outsourced from Proctor & Gamble (“P&G”). (Id. at 623.) In this capacity, Plaintiff was responsible for the North American core manufacturing critical system. (Id.) system – P&G’s largest and most Plaintiff’s primary tasks were to manage the system, implement updates where required, fix incidents that arose in a timely fashion, and oversee projects related to core manufacturing. (Id. at 647.) In late 2006 or early 2007, Defendant promoted Plaintiff to a managerial position at the M1 salary grade. Plaintiff did not receive a pay (Id.) increase. At that time, (Id.) Despite management’s pledge that a pay increase was forthcoming, Plaintiff claims that she was never compensated. (Id.) In her new position, Plaintiff’s primary responsibility was to manage the members of the North America Enterprise Resource Planning (“ERP”) team. (Doc. 40-4 at 879.) performance Specifically, Plaintiff was tasked with completing evaluations of team 9 members and resourcing and staffing direct reports on applicable projects throughout the North American time zone. (Id. at 880.) Plaintiff’s secondary responsibilities involved escalation management. 6 (Id. at 882.) In her escalation role, Plaintiff ensured that the proper direct reports were working on the issue, and she served as an interface between the customer and upper management to keep them informed of the team’s progress. (Id.) fifteen direct reports. Plaintiff managed between ten and (Doc. 40-1 at 641.) To highlight the distinction between her positions, Plaintiff has emphasized the managerial nature of her latter role. She indicated that at this point in her career she “didn’t do the technical work much at this point, but, obviously, the knowledge that [she] gained was useful in helping manage incident resolution.” (Id. at 649.) Plaintiff testified that her technical foundation was helpful in understanding the day-to-day work that her direct reports conducted to manage her team effectively. (Id. at 645.) By all accounts, Plaintiff’s job performance was sterling under multiple different managers. (Doc. 40-4 at 891.) Plaintiff received a “Significantly Exceeding Expectations” rating every year for ten years during one portion of her employment – a rating 6 Escalations are an information technology term of art referring to outages that require quick response times because the outages are related to business critical functions. (Doc. 40-3 at 831.) 10 reserved for the top ten to twenty percent of employees. 40-1 at 626.) (Doc. At various unidentified points in her tenure, Plaintiff continually petitioned at least three of her direct supervisors that her salary was not commensurate with her education and experience. discussions, (Id. at 627.) management At some point during these acknowledged that Plaintiff was being compensated at the low end of her salary curve and that they would take steps to address this disparity. (Id.) These efforts, however, proved fruitless as upper management denied the request for an equitable pay increase on the ground that Defendant did not have sufficient allocations for the raise. In 2011, Plaintiff’s learned that (Id. at 628.) multiple male direct reports and several managerial peers were being compensated at higher levels. 7 (Id. at 611.) One of those peers, Douglas McKinley (“McKinley”), allegedly performed the same duties and reported to the same supervisor as Plaintiff. (Doc. 40-4 at 883.) Plaintiff was apprised of this information via a spreadsheet transmitted to her via e-mail from Shibu Chakkoria (“Chakkoria”), her direct supervisor, during a ratings and review period. (Doc. 40-1 at 611.) Normally, Defendant only provides managers with their direct reports’ salary information, but 7 this spreadsheet included Between 2006-2015, Plaintiff maintains that Defendant compensated her at Pay Band I for her M1 position. (Doc. 40-1 at 633.) 11 Plaintiff’s managerial peers as well. 8 The record is undeveloped as to whether Plaintiff lodged a formal complaint with human resources or took action beyond the filing of the current lawsuit. Plaintiff also alleges that her tenure was marked by instances of derogatory gender-based comments supporting a discriminatory animus for limiting her compensation. possible Plaintiff maintains that middle managers would directly question Plaintiff during leadership meetings concerning her children. (Id. at 629.) These questions routinely concerned setting meeting times between 1:00 and 3:00 P.M., prompting these managers to make derogatory comments about Plaintiff’s childcare needs that became something of a running joke among management. (Id.) Plaintiff also alleges that Bhargava made derogatory comments about Plaintiff’s children during a weekend rapid response escalation conference call asking Plaintiff to quiet her children when they were not present. at 629-630.) (Id. Plaintiff contends that such comments were not directed at male employees who had children. Unlike her allegations of sex-based wage discrimination, Plaintiff reported her discomfort with these comments to her direct supervisors. (Id. at 634.) Both Chakkaria and Christian Todd 8 Both Chakkoria and Sumit Bhargava (“Bhargava”), a middle manager, believe that the spreadsheet has been doctored because Defendant would have never provided either of them with salary information regarding their peers since they are not involved in making those pay increase determinations. (Doc. 40-3 at 843.) 12 (“Todd”), Plaintiff’s peer manager at the time, acknowledged that the comments were inappropriate, but they were limited in their response as many of these comments came from their own direct supervisors. complaints (Id. she at lodged 635-36.) Plaintiff against middle believes management that cost the her a promotion that ultimately went to Todd despite being told that she would receive that opportunity. (Id. at 635.) Defendant terminated Plaintiff’s employment in April 2015 after becoming aware that Plaintiff had concealed her marriage to one of her direct reports in direct violation of Defendant’s Code of Business Conduct. 9 (Doc. 33-1, PageID# 133.) At some point thereafter, Plaintiff transmitted the spreadsheet in question to the Equal Employment Opportunity Commission (“EEOC”) in connection with a charge of discrimination. (Doc. 40-2 at 808-11.) In August 2016, Plaintiff filed suit in Boone County Circuit Court, and defendants removed the case to this Court on the basis of diversity jurisdiction. (Doc. 1-1; Doc. 1-3.) discovery, for Defendant moved summary judgment Following on all of Plaintiff’s claims. 9 Plaintiff does not challenge the grounds for her termination in this lawsuit. 13 Analysis Defendant advances judgment motion. two primary arguments in its summary First, defendant argues that since Plaintiff’s sex discrimination claim has been brought pursuant to K.R.S. § 344, the statute of limitations is five years to determine which discrete pay decisions are applicable in this situation. (Doc. 33-1, PageID# 134.) Second, defendant argues that Plaintiff cannot establish a prima facie case of sex-based wage discrimination. 1. Applicability of Kentucky Civil Rights Statute and Statute of Limitations The parties agree that a claim under K.R.S. § 344 is subject to a five-year statute of limitations and that the applicable limitations period in this matter runs from July 25, 2011 (five years prior to the filing of Plaintiff’s complaint herein) through April 30, 2015 (Plaintiff’s final day of employment). 10 (Doc. 33- 1 at 134, 145; Doc. 39-1 at 409.) The parties do not agree, however, whether it is Plaintiff’s individual pay increases or her total compensation which should be analyzed vis a vis her male comparators. 10 Kentucky law indicates that actions “upon a liability created by statute”, such as the Kentucky Civil Rights Act, “shall be commenced within five (5) years after the cause of action accrued.” K.R.S. 413.120(2). 14 At the outset, Kentucky law provides scant guidance as to how courts typically address acts of wage-based sex discrimination where allegedly discriminatory pay increases subsequently taint overall compensation figures, creating total wage disparities. Currently, Kentucky law mandates that “an action for discrimination or retaliation accrues on the date the act of discrimination or retaliation occurs.” 11 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002); see also Walker v. Commonwealth, 503 S.W.3d 165, 172 (2016) discrete acts framework under Kentucky law). (applying Morgan’s This rule applies to “any discrete act of discrimination, including discrimination in “termination, failure refusal to hire.” to promote, denial of transfer, Ledbetter, 550 U.S. at 621 (2007). [and] As in a Title VII case, liability may only arise for discrete acts that occurred within the appropriate time period. Morgan, 536 U.S. at 114. Furthermore, “a new violation does not occur, and a new charging period does not commence, 11 upon the occurrence of Defendant’s argument concerning the application of the Ledbetter standard in this case is accurate. K.R.S. § 344 has not been explicitly amended to adopt the provisions of the Lilly Ledbetter Fair Pay Act, Pub. L. No. 111-2, 123 Stat. 5 (2009). Kentucky courts have continued to apply Ledbetter as recently as 2016. See Walker v. Commonwealth, 503 S.W.3d 165, 172 (2016) (applying Ledbetter). 15 subsequent nondiscriminatory acts that resulting from past discrimination.” Yet, “where a plaintiff can entail adverse effects Ledbetter, 550 U.S. at 628. establish that the alleged discriminatory act or series of acts constitutes a ‘continuing violation,’ principles of equity allow the limitations period to run anew from each succeeding discriminatory action.” 12 Walker, 503 S.W.3d at 172. Here, it appears that Plaintiff is attempting to rely on non-discriminatory compensation decisions that fall outside of the limitations period to support her current wage-based sex discrimination claim by advancing a “total compensation” argument. (Doc. 39-1 at 409). First, This theory is not well taken. utilizing total compensation as a discrete pay decision contravenes Supreme Court authority that liability may only arise for discrete acts that occur within the applicable limitations period. Morgan, 536 U.S. at 114. Here, Defendant set Plaintiff’s base salary in 1998 and this decision created the baseline for the subsequent merit increases she received during her employment. falls outside While the 1998 determination, itself, clearly the five-year limitations 12 period, it became There is no continuing violation in this case. Each of the merit-based pay increases that Plaintiff challenges are “easy to identify” and were distinct in time and circumstance. Walker, 503 S.W.3d at 173. 16 intertwined with later merit increases that Defendant awarded Plaintiff, which resulted in Plaintiff’s total compensation. Therefore, since Plaintiff only received merit increases during the limitations period, utilizing her total compensation figures would necessarily encompass the base salary decision made outside the limitations period. Stated differently, the 1998 decision is not a distinct pay decision made during the limitations period. Second, Supreme Court precedent cautions that courts should not automatically decisions other ascribe than discriminatory those about specifically made such allegations. which intent the to employment plaintiff has Ledbetter, 550 U.S. at 628; see United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) (declining to take United’s discriminatory intent in 1968, when it discharged the plaintiff due to her sex, and assign that intent to its later act of neutrality applying its neutrality system). In other words, if an employer acted with a discriminatory animus at one point in an employee’s tenure, it does not mean that it did so on other occasions. Plaintiff has adduced no evidence that her 1998 base salary determination was motivated by sex-based discriminatory animus. She alleges only that at some point later in her employment she suspected that Defendant was compensating her at lower levels than 17 her education, experience, and performance reviews warranted. 13 (Doc. 40-1 at 627.) Plaintiff’s sex-based wage discrimination suspicions were allegedly only confirmed in 2011 when Plaintiff came into possession of a spreadsheet showing higher compensation of male subordinates and peers. (Id. at 615.) Given the Supreme Court’s guidance in the area, the Court concludes that it must use the merit pay increases which occurred during the limitations period as the discrete pay decisions as the basis for plaintiff’s claim, rather than the total compensation figures which would include the non-actionable 1998 base pay decision. 2. Prima-Facie Case of Wage-Based Sex Discrimination The Supreme Court of Kentucky interprets the Kentucky Civil Rights Act consistently counterparts. its federal anti-discrimination Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky. 2005). Here, with Plaintiff burden-shifting In this case, that counterpart is Title VII. relies scheme. exclusively (Doc. 39-1 on at the McDonnell 400.); see Id. Douglas Allen v. Ingersoll-Rand Co., No. 1:96-cv-6-M, 1997 WL 579140 *5 (W.D. Ky. June 17, 1997) (applying the McDonnell Douglas burden shifting 13 Notably, Plaintiff does not argue that she suspected Defendant was compensating her at lower levels compared to male subordinates and peers. Plaintiff simply asserts that her compensation was not commensurate with her education and professional experience. 18 scheme to wage-based sex discrimination claims brought under the Kentucky Civil Rights Act.) The parties contest only two elements of the prima facie case: (1) whether Plaintiff was subjected to an adverse employment action, and (2) whether Defendant treated Plaintiff differently than similarly-situated class. individuals outside of the protected See Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006). a. Adverse Employment Action In the Title VII context, an adverse employment action is one that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998); see also Lentz v. City of Cleveland, 333 F. App’x 42, 57-58 (6th Cir. 2009). Simply put, there can be no adverse employment action where Plaintiff’s merit increases between 2012-2015 either significantly outpaced all or, in a single limited instance, fell slightly below 19 only one of her male comparators. The below brief graphic emphasizes this point: 14 Employee Merit Increase Merit Merit Increase Merit Increase 2014 2015 Increase 2012 2013 $7,500.01 $4,000.00 None $3,511.96 Timothy Bahorik None None None Not Applicable Jason $2,945.76 $1,011.36 None $2,043.28 Rizwan Zahoor None None None Not Applicable Himanshu Garg None None None None Gordon Shlegel None None None None Ihab Abuelenein $4,138.23 None None None James Dimapasoc None None None None Anthony Holman $1,860.00 $948.60 None $1,916.36 Ashley Allen Hobson 14 The graphic is drawn from Exhibit I of Defendant’s Summary Judgment Motion (Doc. 35-1, PageID# 241.) 20 Michael Howell $6,531.00 $1,996.62 None $2,036.35 Eric Lanam $5,462.00 $4,250.00 None $4,013.98 Doug McKinley $1,000.01 $1,400.00 None None Accordingly, there was no adverse change in Plaintiff’s employment status during the limitations period. b. Comparison Between Similarly-situated Employees Plaintiff has produced evidence of eleven male employees who she alleges are comparators — ten subordinates and one alleged peer. Information related to these comparators’ job responsibilities, salary, and performance evaluations are attached as a separate appendix (Appendix I), along with a chart related to these employees’ merit-based increases. However, Plaintiff cannot establish that she was similarlysituated to the eleven male comparators. To make such a showing, Plaintiff is obliged to present evidence that she was “similarly situated in all relevant respects.” Board of Regents v. Weickgenannt, 485 S.W.3d 299, 308 (Ky. 2016) (citation omitted). That is, plaintiff must demonstrate that “all relevant aspects of [her] employment situation are nearly identical to those of the employees who [s]he alleges were treated more favorably.” 21 Id. To prove that Plaintiff performed work that was “nearly identical” to her male comparators she must demonstrate that the performance of responsibility. Cir. 1981). each job required equal skill, effort, and Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Here, “skill includes such considerations experience, training, education, and ability. as Effort refers to the physical or mental exertion necessary to the performance of a job. Responsibility concerns required in performing a job.” the degree of accountability EEOC v. Universal Underwriters Ins. Co., 653 F.2d 1243, 1245 (8th Cir. 1981). Applying this analysis, it is clear that Plaintiff was not performing work “nearly identical” to her male comparators. At the outset, Defendant coded Plaintiff’s job as a Manager at the M1 level during the limitations period in contrast to her male comparators who were coded as Professionals at the Specialist, Expert, and Master levels. While title distinctions are non- dispositive whether situated, in the determining evidence is this employees matter are demonstrates similarlyimportant distinctions between these various job functions. By Plaintiff’s own admissions, it is clear that her primary task was people management. Her position involved staffing North American time zone subordinates on projects and assessing their performance. (Doc. 40-4 at 880.) 22 Likewise, her secondary escalation staffing management team role members primarily with unexpected service outages. the involved requisite (Id. at 882.) identifying skill to and address Plaintiff testified that “she didn’t do the technical work much at this point” and that she “would assist . . . but [ ] always made sure to have people involved responsibility.” In because technical work was their (Doc. 40-1 at 649) (emphasis added.) contrast, specialists the with Plaintiff’s varying levels technology service delivery. comparators of expertise were in technical information For instance, Eric Lanam reported to Plaintiff during a portion of the limitations period and described himself as subject matter expert focused on running a particular technology. (Doc. 40-5 at 955.) Notably, Defendant subsequently promoted Lanam to a management escalation role and distinguished this role from his former position, noting that his primary task became “managing [ ] resources and escalating to off shift if needed.” (Id. at 958) (emphasis added.) Likewise, Professional-Experts Jason Hobson, Michael Howell, Himanshu Garg, Anthony Holman, James Dimapasoc, Gordon Schlegel, Rizwan Zahoor, Ihab Abuelenein focused on technical management and project work, respectively. 715, 722, 723.) core manufacturing, and various SAP systems (Doc. 40-1 at 653, 681-85, 686-87, 704, 706, 713, Professional-Specialist Timothy Bahorik was also 23 involved in the same type of technical work as his Expert counterparts, but he lacked their high level of technical mastery. (Id. at 720.) Douglas McKinley deserves separate consideration from the above comparators as Plaintiff identifies him as a peer with the exception that Plaintiff managed more systems and subordinates. (Id. at 694) However, this characterization does not comport with the record. Chakkoria testified that McKinley was a subject matter expert who possessed authority in certain technologies and is described as having a “completely different role[]” when compared to Plaintiff. 15 (Doc. 40-4 at 887.) Moreover, Lanam testified that McKinley was a “senior architect, scripting resource” with a technical escalation skill set superior to Plaintiff. (Doc. 40- 5, PageID# 943.) Based upon this evidence, it is clear that Plaintiff was not similarly situated to these employees. Plaintiff’s responsibilities vastly differed from those of her comparators in that she was responsible for personnel management rather than application of technical skills. Similarly, it is undisputed that skill differences existed between Plaintiff, her subordinates, and her self-identified peer. In 15 sum, Plaintiff’s employment This would explain McKinley’s 28-Master rating identifying him as a technical expert. 24 responsibilities throughout the limitations period varied considerably from the male comparators, and plaintiff has thus not satisfied this prong of the prima facie case. b. Legitimate Non-Discriminatory Basis for Wage Disparity Assuming that Plaintiff had established a prima facie case of wage discrimination, Defendant nonetheless has demonstrated a legitimate non-discriminatory basis for any wage disparity based on its compensation scheme. scheme involves a variety Defendant acknowledges that its of factors that are taken into consideration when assessing an employee’s performance: [A]ffordability of the company, how well the company did until the end of the year . . . The second factor would be how the individual did in their year in terms of their performance appraisal . . . Then the third is . . . where in the salary curve they are . . . it’s natural if certain people, if they’re maxed out in their salary curves, they would get nothing. If there are people who are lower down on the salary curves they would get the salaries, and then from time to time there are certain directives where the company can say there are no salary raises for [the] US.” (Doc. 40-3 at 850.) Additionally, “tenure; how you came into a company, local market conditions, retention, and attraction of local talent” make it impossible for all “your highest rated individuals would be the highest paid in the company.” 25 (Doc. 40- 6 at 993.) It also strains logic to find that Defendant’s compensation scheme was discriminatory where Plaintiff was the individual assessing her comparators and making critical decisions regarding the amount of their merit increases. “Generally, a wage system which sets different grades for each position type and allocates a wage range is acceptable if the decisions are based on non-discriminatory factors.” Allen, 1997 WL 579140 at *6; see Cox v. Home Ins. Co., 637 F. Supp. 300, 304 (N.D. Tex. 1985) (upholding a complex compensation scheme devoid of discriminatory factors). The above compensation factors do not include any discriminatory elements. In fact, the number of variables would seem to prevent any discriminatory element from having a role in setting compensation. For all these reasons, the Court concludes that plaintiff has failed to raise a triable issue on her claim for Therefore, having reviewed this matter and considered the parties’ arguments, and being sufficiently advised, IT IS ORDERED that defendant’s motion for summary judgment (Doc. 33) be, and is hereby, GRANTED. enter concurrently herewith. 26 A separate judgment shall This 7th day of September, 2018. 27 Appendix I Employee Name: Ashley Allen Employee Title: SVC-ITO Service Delivery Management Level: I-Manager Subordinate/Peer to Plaintiff: Not Applicable Job Descrintion: Complete performance evaluations of North American ERP team members and resourcing and staffing direct reports on applicable projects throughout the North American time zone. management Escalation Management Jason Hobson SVC-ITO Service Delivery Professional 15-Expert Subordinate Technical management and project work, core manufacturing, and various SAP systems Rating(s): 2011: Significantly Exceeds Expectations 2012: Significantly Exceeds Expectations 2013: Significantly Exceeds Expectations Total Base Pay: 2011: $92,700 2012: $100,300 2013: $104,200 2015: $107,711 2014: Significantly Exceeds Expectations 2012: Exceeds Expectations 2013: Exceeds Expectations 2014: Exceeds Expectations 2011: $98, 191.97 2012: $101, 137.33 2013: $102,148.69 2015: $104, 191.97 2015: $120,000 Allen v. HP Enterprises LLC Mot. Sum. J. 1 Appendix I Eric Lanam SVC-ITO Service Delivery Professional 14-Master Subordinate initially and then became Plaintiffs peer. Project Management 2011: 99,071.01 Technical management and project work, core manufacturing, and various SAP systems 2012: 104,533,01 2013: 108,783.01 2015: $112,000 2015: $130,000 Michael Howell SVC-ITO Service Delivery Professional 27-Master Subordinate Technical management and project work, core manufacturing, and various SAP systems 2011: $93,300 2012: $99,631.00 2013: $101,827.62 2015: $103,863.97 Himanshu Garg SVC-ITO Service Delivery Professional 15-Expert Subordinate Technical management and project work, core manufacturing, and various SAP systems 2011: Exceeds Expectations 2012: Exceeds Expectations 2013: Achieves Expectations 2015: Achieves Expectations Allen v. HP Enterprises LLC Mot. Sum. J. 2 2011: $109,141.65 2012: $109,141.65 2013: 109, 141.65 2014: $110,636.89 2015: $111,837.45 Appendix I Anthony Holman SVC-ITO Service Delivery Professional 15-Expert Subordinate Technical management and project work, core manufacturing, and various SAP systems 2011: Achieves Expectations 2012: Exceeds Expectations 2013: Exceeds Expectations 2011: $93,000 2012: $94,860 2013: $95,808.60 2015: $97,724.96 2014: Achieves Expectations James Dimapasoc SVC-ITO Service Delivery Professional 27-Master Subordinate Technical management and project work, core manufacturing, and various SAP systems 2011: Achieves Expectations 2012: Achieves Expectations 2013: Achieves Expectations Gordon Schlegel SVC-ITO Service Delivery Professional 15-Expert Subordinate Technical management and project work, core manufacturing, and various SAP systems 2012: $112,697.18 2013: $112,697.18 2014: $114,196.05 2014: Achieves Expectations 2015: $114,094.62 2011: Exceeds Expectations 2011: $95,000.04 2012: Achieves Expectations 2013: Achieves Expectations 2014: Allen v. HP Enterprises LLC Mot. Sum. J. 3 2011: $111,697 .18 2012: $104,500 2013: $104,500 2014: $109,504.80 2015: $108,500.30 Appendix I Achieves Expectations Rizwan Zahoor SVC-ITO Service Delivery Professional 15-Expert Subordinate Technical management and project work, core manufacturing, and various SAP systems 2011: Achieves Expectations 2012: Achieves Expectations 2013: Partially Achieves Expectations 2014: Partially Achieves Expectations Timothy Bahorik Ihab Abuelenein SVC-ITO Service Delivery SVC-ITO Service Delivery Professional 16- Specialist Professional 15-Expert Subordinate Subordinate Technical management and project work, core manufacturing, and various SAP systems 2011: Achieves Expectations Technical management and project work, core manufacturing, and various SAP systems 2011: Significantly Exceeds Expectations 2013: Significantly Exceeds Expectations 2014: Mot. Sum. J. 4 2012: $109,188.24 2013: $109,188.24 2014: $109,188.24 2015: $109,188.24 2011: $99,536.25 2012: Achieves Expectations 2012: Significantly Exceeds Expectations Allen v. HP Enterprises LLC 2011: $109,188.24 2011: $118,236.99 2012: $122,373.42 2013: $122,373.42 2014: $122,373.42 2015: $122,373.42 Appendix I Exceeds Expectations 2015: Achieves Expectations Douglas McKinley SVC-ITO Service Delivery Professional 28-Master Peer Senior architect, scripting resource and involved in technical escalation with a skill set that was superior to Plaintiff's 2011: Achieves Expectations 2012: Exceeds Expectations 2013: Exceeds Expectations 2014: Exceeds Expectations 2015: Achieves Expectations Allen v. HP Enterprises LLC Mot. Sum. J. 5 2011: $123, 183.40 2012: $124,183.41 2013: $125,583.41 2014: $130,606.84 2015: 129,602.08 Appendix I Merit Increase Comparison Graph Employee Merit Increase 2012 Ashley Allen (Plaintiff) Merit Increase 2014 Merit Increase 2015 $7,500.01 Merit Increase 2013 $4,000.00 None $3,511.96 Timothy Bahorik None None None Not Applicable Jason Hobson $2,945.76 $1,011.36 None $2,043.28 Rizwan Zahoor None None None Not Applicable Himanshu Garg None None None None Gordon Shlegel None None None None Ihab Abuelenein $4,138.23 None None None James Dimapasoc None None None None Anthony Holman $1,860.00 $948.60 None $1,916.36 Michael Howell $6,531.00 $1,996.62 None $2,036.35 Eric Lanam $5,462.00 $4,250.00 None $4,013.98 Doug McKinley $1,000.01 $1,400.00 None None Allen v. HP Enterprises LLC Mot. Sum. J. 6