Kirsten Wiley v. Microsoft Corporation

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

KIRSTEN WILEY,

No. 69694-7-1

Appellant,

DIVISION ONE

v.

MICROSOFT CORPORATION,

a Washington corporation, UNPUBLISHED OPINION

Respondent. FILED: March 10. 2014

Spearman, A.C.J. — Former Microsoft Corporation employee Kirsten

Wiley appeals the trial court's summary dismissal of her claims against the

company for (1) gender discrimination in violation of the Washington Law Against

Discrimination ("WLAD"), chapter 49.60 RCW, and (2) breach of an enforceable

promise of specific treatment in specific circumstances underThompson v. St.

Regis Paper Co.. 102 Wn.2d 219, 685 P.2d 1081 (1984). Finding no error, w^ :>::c

^

affirm.

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FACTS1

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Kirsten Wiley began working for Microsoft in 1992 in a sales position anji

was last promoted in 2007 to a director of marketing and communications

position in the Microsoft Research ("MSR") Group. In that role, she was

responsible for providing marketing and public relations services to business

1The trial court sealed certain records, which remain sealed in this court. Accordingly, we

have granted Wiley's motion to file her unredacted briefs under seal.

No. 69694-7-1/2

partners within MSR and generating news coverage and publicity to support their

goals. She also directed some of the work of Waggener Edstrom, Microsoft's

primary external public relations agency. Wiley's reviews from 2006 to 2009 were

generally positive. She earned accolades,2 but also received constructive

criticism during that time.3 Since 2003, Wiley reported to Kevin Schofield, who

reported to Rick Rashid, who reported to Chief Research and Strategy Officer

Craig Mundie, who reported to Chief Executive Officer Steve Ballmer.

In 2009, Mundie instructed the MSR public relations team and the

Corporate Communications team to coordinate more closely to ensure the

cohesiveness of Microsoft's external communications. Several individuals in

Corporate Communications had problems working with Wiley. These included

David Pritchard (a senior director and Mundie's chief of staff), Peter Haynes

(Pritchard's direct report), Frank Shaw (hired in August 2009 as the vice

president of Corporate Communications), and Tom Pilla (a communications

manager and Shaw's direct report). Pritchard, Haynes, and Shaw agreed to keep

2Wiley's reviews were as follows: 2006 - Achieved, Strong; 2007 - Exceeded, 20%;

2008 - Achieved, 20%; 2009 - Achieved, 20%. Twenty percent was the highest possible rating.

Her reviews included praise ("You are a huge asset to the organization and a fantastic

contributor." Clerk's Papers (CP) at 1010 (2007 review). "You've been doing really solid work this

year." CP at 1017, (2008 review). "You're clearly delivering great results for MSR and for the

company, in a tough and rapidly changing environment." CP at 1021, (2009 review)). Wiley was

designated a "high potential" employee in 2008 and 2009 and was selected for Microsoft's

"Bench" program in 2008. CP at 1044. In 2010, she was awarded the "Gold Star" and a bonus of

$80,000 worth of stock.

3These included concerns thatWiley failed to respond to e-mails and requests; left items

unfinished or unmentioned when she went on vacation or had an unplanned absence; was

defensive and negative with respect to new approaches and ideas; and at times was "too focused

on the existence of a problem and [had] a hard time getting beyond creating a solution." CP at

140.

No. 69694-7-1/3

each other posted regarding their concerns about Wiley as they arose. CP 1104,

1107-08.

One incident took place in March 2010, when Mike Houlihan from

Waggener Edstrom emailed Microsoft employee Lou Gellos and Wiley about a

KUOW reporter's request for an interview about a Microsoft technology and a

patent issued that day.4 CP at 1157. Wiley responded, "Microsoft doesn't

comment on patents." kl Gellos then sent Wiley's email to Shaw and others,

writing that KUOW was interested in a recent patent filing and stating, "In the

spirit of rapidly responding to a request that is newsworthy, I asked MSR for

some help amplifying their fine innovative work. And I received what we regularly

receive. A wall." Id. Shaw wrote to Wiley, "'Why would we not want to talk about

this technology? Not the patent per se, but what it could mean?'" CP at 155. He

had also not heard ofa Microsoft policy of not commenting on patents.5 CP 764.

Wiley, Shaw, and Schofield exchanged emails, with Wiley and Schofield

expressing concerns about not knowing what the reporter wanted to talk about

and whether there was someone who could speak on such subject. Wiley stated

that she wanted to decline on the story. Shaw wrote, "At this point, I think I am

just going to give up. It feels like we wildly overcomplicated this." He wrote that

Wiley or Schofield could have done "a short interview that would have reflected

well on Microsoft and on MSR in our local community, with the chance to be

4The patentapplication had been published for nearly two years.

5Microsoft does not have a policy of not commenting on patents. Wiley contends it does,

pointing to Mundie's testimony. But Mundie's testimony was that "when patents have been filed,

and in prosecution, in order not to disrupt the legal process of prosecuting an application,

we...don't talk about those applications in any detailed way." CP at 1040. He did not testify that

Microsoft does not comment on patents, only patent applications in prosecution.

3

No. 69694-7-1/4

picked up more broadly." jd. Shaw and Haynes were evidently frustrated, with

Haynes writing to Shaw that KUOW did not want to write about "$#@%ing

patents" and Shaw replying, "I'm getting hot now." CP at 1159.

Also in March 2010, Haynes asked Wiley to keep him "in the loop" about a

particular developing story, and not wait until afterward to inform him, noting the

need for his team to be involved along the way. CP at 260. He referred to

Mundie's directive to "accrue to higher-level message goals." He then wrote to

Shaw and Pritchard to express his apparent displeasure with Wiley.

In spring 2010, Schofield told Wiley that people in Corporate

Communications had complained of difficulty working with her. Schofield then

emailed Shaw that Wiley took the feedback well and was committed to making

the partnership with his team and Haynes' team work, and that he would oversee

her while she worked to repair relationships. Shaw forwarded the emails to Pilla,

asking him to "reinforce" his message. Pilla responded, "'Will do.'" ]± Pilla

understood Shaw's message to refer to his advice that Schofield should take the

lead from Wiley as the main partner between her team and the teams of Shaw

and Haynes. CP at 1172. Shaw wrote to Pritchard that Schofield had had a

conversation with Wiley and that "[tjhat's a step." CP at 1179.

In July 2010, Shaw wrote to Pilla that Schofield had not received

sustained feedback critical of Wiley and that it was time to be "super direct" with

Schofield and "put the hammer down." CP at 1190. At some point, Pritchard,

Haynes, and Pilla encouraged certain individuals to provide feedback to

No. 69694-7-1/5

Schofield about Wiley.6 In August 2010, Pritchard suggested that Schofield meet

with Human Resources and managers in Corporate Communications to discuss

concerns about Wiley. On October 15, Pritchard, Haynes, and Pilla met with

Schofield. Pritchard emailed HR director Sheryl Peterson, stating there was

consensus amongst those attending the meeting that Wiley should be in a

different role.

Schofield and Peterson began soliciting feedback about Wiley from her

direct reports, Waggener Edstrom employees, and others from MSR and

Corporate Communications. Seventeen men and women were interviewed,

Shaw not among them. On December 6, 2010, Schofield and Peterson met with

Wiley to discuss the feedback, which contained negative comments.7 Schofield

said Wiley had to take immediate steps to correct the issues identified. Schofield

and Wiley prepared an action plan to help Wiley mend relationships with

business partners and direct reports. Microsoft offered Wiley an executive coach

and mentor. She declined the offer of a mentor.

6Haynes emailed one person on October 14, 2010, encouraging herto provide feedback

to Peterson and stating that her doing so would be helpful to him and Pritchard.

7Comments included that she was "bullying," "blocking" and "scapegoating," was

"disrespectful of leaders...and other groups," was "defensive" when approached, was

"confrontational and resistant when people reach out to her," had a "negative attitude," had "zero

credibility with partner teams," had a "lack of engagement, availability and physical presence" and

"[did]n't want to do work or be accountable." CP at 264-66. Others noted that they "pick[ed] up a

lot of work because of Wiley "when it [was not] their job to do so." CP at 265. Some found that

Wiley was "[u]nwilling to delegate" and "micromanage[d]."Id. Interviewees commented that Wiley

had a "lack of strategy, marketing skills, experience and thought leadership," did not "understand

the basics of marketing and PR," and that her "plans d[id]n't have goal[s] [or] strategies." ]g\

Some who gave feedback commented that they had been afraid to come forward with their

concerns about Wiley because they feared she might retaliate against them or felt that Schofield

condoned her behavior.

No. 69694-7-1/6

After the meeting, Wiley wrote to Schofield and Peterson, "I believe these

slides and the behind-the-scenes work that led to their creation were constructed

with the sole intention of creating a case to justify terminating me from Microsoft."

CP at 267. She attributed the feedback to her standing up to Shaw and refusing

to discuss patent applications with the media in violation of company policy.

On February 16, 2011, Wiley filed a complaint alleging (1) gender

discrimination under the WLAD and (2) a Thompson claim for breach of a

promise of specific treatment in a specific situation. The gender discrimination

claim was based on (a) the feedback and treatment she received in 2010 and (b)

Microsoft's alleged failure to promote her to a higher level and/or increase her

salary, as compared to similarly situated male employees. For the Thompson

claim, Wiley alleged Microsoft specifically promised employees that if they refuse

to violate corporate policy, it would not permit retaliation against them and that

she relied on this promise to her detriment when she refused to violate corporate

policy by speaking to the media about patent applications.

On November 7, 2011, Wiley went on medical leave due to depression

and anxiety. Microsoft held her position open for seven months before it replaced

her with K.K., as she had not provided a return-to-work date.8 CP 598. Following

discovery, Microsoft filed a motion to dismiss Wiley's claims on summary

8Wiley never returned to work, and for reasonsthatare not in the record, is no longer a

Microsoft employee. Wiley filed a motion in this Court under RAP 9.11 to supplement the record

with three pages of additional new evidence from February and March 2013 that relate to why

she is no longer employed at Microsoft. Her motion is denied; this evidence was not before the

trial court when it ruled on Microsoft's motion for summary judgment. See RAP 9.12 (review of

summary judgment limited to evidence before trial court).

No. 69694-7-1/7

judgment. The trial court granted Microsoft's motion and entered a judgment for

Microsoft's costs. Wiley appeals the dismissal of both of her claims.

DISCUSSION

This court reviews summary judgment de novo. Hearst Communications,

Inc. v.Seattle Times Co.. 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summary

judgment should be granted only if the pleadings, affidavits, depositions, and

admissions on file demonstrate the absence of any genuine issues of material

fact and that the moving party is entitled to judgment as a matter of law. Sheehan

v. Central Puqet Sound Regional Transit Authority. 155 Wn.2d 790, 797, 123

P.3d 88 (2005); CR 56(c). The court must consider all facts and reasonable

inferences in the light most favorable to the nonmoving party. Michael v.

Mosquera-Lacv. 165 Wn.2d 595, 601, 200 P.3d 695 (2009). Summary judgment

is appropriate if reasonable minds could reach but one conclusion. Vallandigham

v. Clover Park Sch. Dist. No. 400. 154 Wn.2d 16, 26, 109 P.3d 805 (2005).

Gender Discrimination Claims

To prove sex discrimination under the WLAD, an employee must show

that her employer "treats some people less favorably than others because of

their gender. Shannon v. Pay 'N Save Corp.. 104 Wn.2d 722, 726, 709 P.2d 799

(1985), abrogated on other grounds by Blair v. Washington State University. 108

Wn.2d 558, 740 P.2d 1379 (1987) (internal quotation marks and citation omitted).

The plaintiff in a disparate treatment lawsuit must present evidence that the

defendant's discriminatory motive was a substantial factor in its adverse

employment action. Mackav v. Acorn Custom Cabinetry. Inc.. 127 Wn.2d 302,

No. 69694-7-1/8

310, 898 P.2d 284 (1995). An employee need not prove, however, that her

protected status was the determining factor in the employer's decision, jd.

When evaluating a summary judgment motion in an employment

discrimination case Washington courts use the burden-shifting analysis

announced in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 93 S.Ct. 1817,

36 L.Ed.2d 668 (1973). Fulton v. Dep't of Social & Health Servs.. 169 Wn. App.

137, 148, 279 P.3d 500 (2012). A plaintiff has the initial burden to prove a prima

facie case of discrimination, jd. To do so, the plaintiff must present evidence from

which a jury may infer that an adverse employment decision was based on a

discriminatory criterion. Shelley v. Geren. 666 F.3d 599, 608 (9th Cir. 2012)

(citation omitted).9 The burden then shifts to the employer to rebut any inference

of discrimination by presenting evidence that the adverse action occurred for a

legitimate, nondiscriminatory reason. Fulton. 169 Wn. App. at 149. If an employer

does so, the presumption created by the plaintiffs prima facie case is rebutted

and the burden shifts to the employee to identify evidence that the employer's

stated reason is actually pretext for a discriminatory motive, jd, The case should

be submitted to a jury only when all three facets of the burden-shifting scheme

are met and the parties have produced sufficient evidence supporting reasonable

but competing inferences of both discrimination and nondiscrimination, jd.

Feedback Process

Adverse employment action — At the outset, Wiley's claim fails because

she does not show that the feedback process constituted an adverse

9Because WLAD "substantially parallels] Title VII," Washington courts "may look to

federal law for guidance." Washington v. Boeing Co.. 105 Wn. App. 1, 8, 19 P.3d 1041 (2000).

8

No. 69694-7-1/9

employment action. An adverse action is any tangible change in employment

status or terms and conditions of employment, such as "hiring, firing, failing to

promote, reassignment with significantly different responsibilities, or a decision

causing a significant change in benefits." Burlington Indus. Inc. v. Ellerth, 524

U.S. 742, 761, 118 S.Ct. 2257, 141 LEd.2d 633 (1998). Wiley does not show

that the feedback process changed the terms or conditions of her employment.

As Microsoft points out, its response to the feedback was to assist Wiley in

preparing an action plan to address the criticism and offer to provide her an

executive mentor and coach. There is no evidence Microsoft suspended,

demoted, disciplined, or terminated her due to the feedback. She remained in her

position for months after receiving the feedback and then commenced medical

leave. Even though Wiley believed the feedback process was a setup to justify

her termination, an employee's fear of losing his or her job in the future is not a

materially adverse change in employment. McKenzie v. III. Dep't of Transp.. 31

Fed. Appx. 922, 926 (7th Cir. 2002); see also Page v. Johnson. 537 F.Supp.2d

43, 61-62 (D.D.C. 2008) (subjective fear of future employment action does not

create triable issue of fact).

Wiley contends it is "undisputed that she had no job at Microsoft, and had

been replaced in her position with a male." Reply Brief at 5-6. She contends the

evidence supports a jury finding that the actions of Shaw, Haynes, Pritchard, and

Pilla succeeded in setting her up for failure, influencing the decisions to remove

her from her position, and predetermining her termination. She contends that

although she stayed with the company after filing suit, she was excluded from

emails and meetings and was shunned. But Wiley has neither alleged nor argued

9

No. 69694-7-1/10

based on these claims that she was constructively discharged from Microsoft.

When the trial court ruled on the motion for summary judgment, Wiley remained

employed by Microsoft as its director of marketing and communications.

Discriminatory animus - Wiley's discrimination claim also fails because

she does not prove a prima facie case of discrimination. As she describes it, the

crux of her claim is that "Microsoft allowed a group of male managers [Shaw,

Haynes, Pritchard, and Pilla] to proximately cause the destruction of her career;

and that they were motivated, at least in part, by gender bias...." Reply Brief at

1. But while the evidence shows these men had problems working with her,

reported their issues to Schofield, and made efforts to move her out of her role, it

fails to permit a reasonable trier of fact to find that they harbored gender bias

against her.

First, as to Haynes and Pritchard, Wiley points to no evidence specific to

them that they were motivated by gender animus. As to Shaw, Wiley asserts that

he was frustrated with her because she, a woman, stood up to him. She points

out that he was in the Marines for eleven to twelve years, during which time he

never had a woman who reported to him refuse a direct order. Such evidence

does not permit the inference that Shaw had gender bias. He testified that

everyone in the Marines was expected to follow a superior's orders, regardless of

gender, and that he never had anyone, male or female, refuse a direct order. As

to Pilla, Wiley points to an instant message he exchanged with another Microsoft

employee in which he made sexual comments about one woman and referred to

10

No. 69694-7-1/11

two otherwomen as "chicks."10 But "[s]tray remarks by non-decisionmakers or by

decisionmakers unrelated to the decision process are rarely given great weight,

particularly if they were made temporally remote from the date of decision."

(Citations omitted), Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509,

545, (3d Cir. 1992). The instant message took place over a year after the events

giving rise to this lawsuit and does not mention Wiley. Moreover, while Pilla

encouraged a coworker to go to Schofield with feedback about Wiley, there is no

evidence he was a decision maker in the feedback process or that any

discriminatory animus he had was a "substantial factor" in any adverse

employment action against Wiley.11

Wiley points to evidence that unidentified individuals in Corporate

Communications referred to her as "Mrs. No" and a "[b]itch."12 But there is no

evidence Shaw, Haynes, Pritchard, or Pilla did so. Nor is there evidence about

the persons who did—for instance, their gender or whether they played a role in

10 In the instant message between Pilla and hiscoworker on January 5, 2012, Pilla asked

ifthe latter spoke "'to the PR Week chick'"; the coworker later wrote that a certain female "is a

complete bitch" and Pilla responded "what happened, did she not blow you? I told her to blow

you. im so sorry"; and Pilla later referred to another female as a "chick." CP at 1279-82. This

exchange took place on office computers.

11 Wiley argues that Pilla's discriminatory mindset can be attributed to Microsoft, relying

on Staub v. Proctor Hospital. 131 S.Ct. 1186, 179LEd.2d 144 (2011). Wiley cites that case for

the proposition that discriminatory animus need not come from the employee's supervisor, and

that it is sufficient here that Pilla was a supervisor of some kind. Staub stands for the proposition

that ifa supervisor performs an act motivated by discriminatory animus that is intended by the

supervisor to cause an adverse employmentaction, and ifthat act is a proximate cause of the

ultimate employment action, then the employer is liable even ifthe supervisor did not make the

ultimate employment decision, id, at 1194. In Staub, the employee did attribute discriminatory

animus to his direct supervisor, unlike Wiley.

12 In Wiley's declaration, she stated that Pilla told herthat people in Corporate

Communications referred to her as "Mrs. No" or a "[b]itch." CP at 1330. Schofield testified that

Pilla told him people in Corporate Communications referred to Wiley as "Mrs. No" because she

was resistant to working with new ideas and new opportunities. CP at 1048.

11

No. 69694-7-1/12

the feedback process. Wiley also points to Shaw's testimony that he had heard

Corporate Communications referred to as an "old boys' club."13 This is not

evidence that Shaw, Haynes, Pritchard, or Pilla were motivated by gender

animus. Shaw testified that he had heard that term because "there was a set of

people who had been there a long time." CP at 1074. As Microsoft posits, the

reference as Shaw understood it was one regarding tenure. This is supported by

evidence that the group was headed by a woman—Shaw's supervisor—at the

time Shaw was hired. There is no evidence of the gender makeup of Corporate

Communications, nor is there evidence that Shaw, Haynes, Pritchard and Pilla

were motivated to maintain any gender dynamic. Furthermore, Wiley was not in

Corporate Communications.

Legitimate and non-discriminatory reason - Next, even if Wiley met her

burden of proving a prima facie case of discrimination, Microsoft asserts a

legitimate and non-discriminatory reason for addressing Wiley's performance in

2010. Based on feedback from her coworkers, Microsoft had legitimate reasons

to believe that she had performance issues that warranted addressing.

Pretext - Wiley does not show pretext. To show pretext, a plaintiff must

produce evidence that the defendant's reason is "unworthy of belief." Hines v.

Todd Pac. Shipyards Corp., 127 Wn. App. 356, 372, 112 P.3d 522 (2005). The

"focus of a pretext inquiry is whether the employer's stated reason was honest,

13 During hisdeposition, Shawwas asked, "Did itever come to your attention that any

woman in yourgroup regarded your group as an old boy's network or old boy[s'] club?" Shaw

responded, "When Ijoined the team, there was a set of people who had been there a long time,

so it was before Ijoined the company, and I had heard that term." CP at 1074.

12

No. 69694-7-1/13

not whether it was accurate, wise, or well-considered." Stewart v. Henderson,

207 F.3d 374, 378 (7th Cir. 2000).

Wiley contends pretext is shown because there is evidence that (1) she

received high reviews and accolades for 19 years before the events in question;

(2) the feedback is untrustworthy; and (3) she was replaced by K.K., a male she

alleges is from Corporate Communications and less qualified than her, even

though a female was her recognized successor. We conclude that this evidence

fails to create a genuine issue of material fact that Microsoft's reason for

addressing Wiley's performance was unworthy of belief. To support her first

point, Wiley cites Carlton v. Mystic Transp.. Inc.. 202 F.3d 129 (2nd Cir. 2000) for

the proposition that a sudden drop in performance ratings, spike in performance

criticism, or an employer's failure to properly document alleged deficiencies

before making the alleged performance-based decision, is circumstantial

evidence from which a jury may find pretext. But here, Microsoft documented

concerns about Wiley as far back as 2005, and such concerns were consistent

with the comments received in 2010.

Next, in contending the feedback is untrustworthy, Wiley asserts that "in

many instances" it was not the individual's own observations but instead reported

what other people said, pointing to (1) Schofield's testimony that one person told

him another named employee sought guidance from Wiley and did not receive it

and (2) Peterson's testimony that another person reported that an unidentified

person described Wiley as "bullying" and "threatening." CP at 1202. These

examples do not show that the feedback from seventeen people was unreliable.

Wiley also asserts that those who gave feedback collaborated, noting that two

13

No. 69694-7-1/14

people said she spent too much time "in the weeds." CP at 1204, 1206. But even

if the mere use of this term by two people showed any collaboration, it does not,

without more, undermine the reliability of the report. She also contends the

feedback from Heather Mitchell and Ann Paradiso is unreliable because Paradiso

had little interaction with Wiley and Mitchell (one of Wiley's direct reports) was

inconsistent. Wiley points out that a couple of months before Mitchell was

interviewed, she had written to a colleague that she was "totally in her [Wiley's]

camp defending her [Wiley] again." CP at 1229. But these circumstances do not

show their feedback is unreliable, and moreover they were only two of seventeen

individuals who gave feedback.

Finally, Wiley contends it is evidence of pretext that she was replaced by

K.K., a male she alleges is from Corporate Communications14 and less qualified

than her, even though a female, K.B., was her recognized successor. This

argument fails because, as noted, Wiley remained employed when K.K. was

hired to fill her role.15 Moreover, even assuming K.K. was less qualified than

Wiley, it does not necessarily follow that he was unqualified for the position or

was hired simply because he was a male. As for K.B., Wiley does not show that

she sought the position or, that if she did, K.K. was less qualified than her. In any

event, K.K.'s being hired does not show that Microsoft's reason for its actions

14 Schofield's declaration states that K.K. did notwork in Corporate Communications with

Shaw. The only evidence to which Wiley points to dispute this, does not show that K.K. was in

Corporate Communications.

15 To the extent Wiley argues it is evidence ofdisparate treatment thatshe was replaced

by a male, she must, to establish a prima facie case, "show that she: (1) is a member of a

protected class; (2) was discharged; (3) was doing satisfactory work; and (4) was replaced by a

person of the opposite sex or otherwise outside the protected group." Domingo v. Boeing

Employees' Credit Union. 124 Wn. App. 71, 80, 98 P.3d 1222 (2004).

14

No. 69694-7-1/15

when it came to Wiley—the negative feedback from a number of individuals—is

unworthy of belief.

Promotion and Pay

Wiley claims gender disparity in her advancement and pay as compared

to that of similarly situated males. She claims she should have been promoted

from a Level 66 (which she attained in 2007) to a Level 67 or higher at some

unspecified time and obtained greater compensation accordingly.

To establish a prima facie case of disparate treatment, a plaintiff must

show (1) she belongs to a protected class, (2) she was treated less favorably in

the terms or conditions of employment than a similarly situated, nonprotected

employee, and (3) she and the comparator did substantially the same work.

Domingo, 124 Wn. App. at 81. The plaintiff and the comparators must be

similarly situated in all material respects. Moran v. Selig. 447 F.3d 748, 755 (9th

Cir. 2006). They should have the same supervisor and be subject to the same

standards. Kirbv v. City of Tacoma, 124 Wn. App. 454, 475 n.16, 98 P.3d 827

(2004).

Wiley's claims fail because she cannot show she and the comparators

were similarly situated in all material respects. Wiley points to four comparators:

B.C., S.C, D.G., and J.O.16 These males and Wiley were not in similar positions

with similar responsibilities and were not doing substantially the same work.

None of the comparators were marketing professionals like Wiley. B.C. was a

director of intellectual property strategy; S.C. a senior director of product

16 Below, Wiley pointed to P.F. and T.H. in addition to these four. Onappeal, she makes

no mention of P.F. or T.H.

15

No. 69694-7-1/16

planning; D.G. a general manager of technology policy; and J.O. a director of

program management.17 Wiley and the comparators were also not evaluated by

the same managers using the same standards. B.C. and J.O. reported to

Schofield, but they were at a different level than Wiley, had B.S. degrees

(required for their roles, unlike for Wiley's), and had technical positions focusing

on technology itself rather than marketing. S.C. and D.G. did not report to

Schofield, and both had Ph.D. degrees (computer science and theoretical

chemistry and physics, respectively), compared to Wiley's B.A. degree.

Wiley points to the comparators' review scores, how long they were at

Microsoft, their levels, and their salaries, and then contends that based on her

review scores and length of employment she should have been promoted and

received a higher salary. But these considerations do not go to whether the

comparators were similarly situated to her in all material respects, did

substantially the same work, or were subject to the same standards. Wiley also

offers testimony that she interfaced regularly with the comparators, that all of

them had to engage in collaboration, and that all of their jobs involved "research

projects that were highly technical, and required a deep understanding of the

technologyf.]" CP at 1331. Wiley cites no authority to show that employees are

similarly situated for such reasons. Finally, she contends she should have been

promoted to Level 67 or higher because she was identified as "high potential" in

17 Wiley's primary duties involved PR and media relations, while B.C.'s involved

technology transfer from research to end product; S.C.'s involved planning for Windows Mobile

and identifying gaps in intellectual property and product portfolio; D.G.'s involved appraisal of

technology and technical liaising to the external community; and J.O.'s involved managing a team

that facilitates technology transfer from research to product.

16

No. 69694-7-1/17

2008-2009. She contends this meant Microsoft expected she would receive two

promotions within three to five years and notes she was at Level 66 for three

years. But she offers no evidence of similarly situated males who were identified

as "high potential" and were promoted in comparable periods.18

Thompson Claim

"Employer obligations may...arise independent of traditional contract

analysis when the employer creates an atmosphere of job security and fair

treatment with promises of specific treatment in specific situations and the

employee relies thereon." Gaglidari v. Denny's Restaurants. Inc.. 117 Wn.2d 426,

433, 815 P.2d 1362 (1991) (citing Thompson. 102 Wn.2d at 230). "'[A]n

employee seeking to enforce promises that an employer made in an employee

handbook must prove: (1) whether any statements therein amounted to promises

of specific treatment in specific situations; (2) if so, whether the employee

justifiably relied on any of these promises; and, finally, (3) whether any promises

of specific treatment were breached.'" Bulman v. Safeway. Inc., 144 Wn.2d 335,

340-41, 27 P.3d 1172 (2001) (citing Thompson, 102 Wn.2d at 233). These

elements present issues of fact, but may be decided as matters of law if

reasonable minds could not differ. Korslund v. Dvncorp Tri-Cities Services. Inc.,

156 Wn.2d 168, 185, 125 P.3d 119 (2005).

Wiley alleges Microsoft specifically promised employees that if they refuse

to violate corporate policy, it would not permit retaliation against them, and that

18 Moreover, the document on whichWiley relies states that "being identified as a HiPo is

not to be used as ... [a]n automatic gateway or implied guarantee to a future promotion"). CP

1024; see ajso CP 379-82 ("There are no guarantees ... that you would remain a high potential

person year over year, no guarantees that you would be promoted to the next band.").

17

No. 69694-7-1/18

she relied on this promise to her detriment when she refused to violate corporate

policy by speaking to the media about patent applications. As evidence that

Microsoft made this promise, Wiley points to:

(1) The Whistleblowing Reporting Procedure and Guidelines (in the

electronic employee handbook ("Handbook") available through the

"HRWeb" within the Microsoft intranet system, CP at 793-94), which

states:

Microsoft needs your assistance to ensure that it fully complies

with all laws, company guidelines, and standards of ethical

conduct....Microsoft will not tolerate retaliation against any

employee for making a good-faith report, cooperating with an

investigation under this procedure or applicable law, or refusing

to participate in activities that violate applicable laws, company

guidelines, or standards of ethical conduct. Any employee who

engages in retaliation shall be subject to disciplinary action up to

and including termination.

CP at 776.

(2) The Microsoft Standards of Business Conduct policy (not part of the

Handbook, but accessible through a separate website—the "LCA

[Legal and Corporate Affairs] Web." CP at 1329), which states:

All Microsoft employees are responsible for understanding and

complying with the Standards of Business Conduct, applicable

government regulations, and Microsoft policies.

Openness, Honesty, and Respect: In our relationships with each

other, we strive to be open, honest, and respectful in sharing

our ideas and thoughts, and in receiving input.

The Standards of Business Conduct and the Business Conduct

and Compliance Program are endorsed by and have the full

support of the Microsoft Board of Directors. The Board of

Directors and management are responsible for overseeing

compliance with and enforcing the Standards of Business

Conduct.

Microsoft will not tolerate any retribution or retaliation taken

against any employee who has, in good faith, sought out advice

or has reported a possible violation.

CP at 1340-44.

18

No. 69694-7-1/19

(3) The Open Door policy (also part of the Handbook).

You are encouraged to air creative ideas, issues, or

concerns....It is your responsibility to ask about things you do

not know or understand, as well as to make suggestions that

could improve any part of the company or its operations.

CP at 1338.

We conclude the trial court properly dismissed this claim. Initially, the

"Open Door" policy contains no non-retaliation language. And both the

whistleblowing guidelines and the Standards of Business Conduct contain

express disclaimers.19 Generally, employers are not bound by statements in

employment manuals if they "state in a conspicuous manner that nothing

contained therein is intended to be part of the employment relationship and are

simply general statements of company policy." Thompson, 102 Wn.2d at 230.

19 First, the Handbook contains disclaimers. When an employee clicks "Read the

Employee Handbook," the following statement appears:

Disclaimer

HRWeb contains only general information and guidelines. It does not create any

contractual rights or impose legal obligations on Microsoft or its subsidiaries, nor

does it guarantee specific treatment in any given situation. HRWeb is updated

frequently and is subject to change without prior notice. HRWeb is intended

primarily as a general information resource for employees of Microsoft.

Information and guidelines may vary by country and by subsidiary. Accordingly,

employees of Microsoft subsidiaries should check with their HR representative

for clarification.

CP at 752. To access the Handbook, the employee must sign into it. An employee signing into

the Handbook views and agrees to the following statement, which provides in relevant part:

At-Will Employment Not Modified:

This handbook...contain[s] general guidelines only. [It is] not intended and shall

not be read to create any express or implied promise or contract for employment,

for any benefit, or for specific treatment in specific situations. Do not rely on any

contrary oral or written statements, practices or conduct of Microsoft or its

employees. Your employment relationship with Microsoft is at-will.

CP at 752-53. Wiley admits she was familiarwith the Handbook's disclaimers, which she

acknowledged dozens of times in the last eleven years of her employment.

The Standards of Business Conduct also contains a disclaimer. It states:

The Standards are not intended to and do not create an employment contract,

and do not create any contractual rights between Microsoft and its employees or

create any express or implied promise for specific treatment in specific situations.

CP at 1342.

19

No. 69694-7-1/20

See also Quedado v. Boeing Co., 168 Wn. App. 363, 374, 276 P.3d 365, rev.

denied, 175 Wn.2d 1011, 287 P.3d 594 (2012) ("[A]n employer can disclaim what

might otherwise appear to be enforceable promises in handbooks or manuals or

similar documents.") (citing Swanson v. Liquid Air Corp., 118 Wn.2d 512, 526,

826 P.2d 664 (1992)).

"A disclaimer may be negated by later, inconsistent representations by the

employer." Quedado. 168 Wn. App. at 374. Wiley contends the disclaimers here

were negated by Microsoft's inconsistent representations and practices. She

points to the annual trainings she received on the Standards of Business

Conduct, during which, she states in her declaration, she was "again and again

told to 'speak up' and raise concerns about laws, regulations, company policies

and/or ethics, and specifically promised [she] would not be retaliated against for

doing so." CP 1329. But her statement shows only that the Standards of

Business Conduct were reiterated to her at trainings. She presents no evidence

she was told, at trainings or otherwise, to disregard the disclaimer and that

Microsoft intended to make promises of specific treatment in specific situations

with regard to the non-retaliation statements.

Furthermore, we agree with Microsoft that Wiley's claim fails because she

identifies no Microsoft policy prohibiting comment on patents.20 Thus, she cannot

show she was acting as a whistleblower, to invoke the non-retaliation policy and

demonstrate a breach by Microsoft. Wiley contends that regardless of the

existence of such a policy, she had a good-faith belief that what Shaw wanted

20 As previously noted, Mundie did not testify that Microsoft does not comment on

patents, only patent applications in prosecution.

20

No. 69694-7-1/21

her to do would violate company policy. But the non-retaliation language in the

whistleblowing policy and Standards of Business Conduct pertains to good-faith

seeking of advice or reports of violations. Wiley did neither; she simply told Shaw

she wanted to decline on the KUOW story. Even if there was a policy prohibiting

discussion of patents, Shaw did not ask Wiley to violate it; he told her a

conversation could be conducted about the technology in question without talking

about patents.

Wiley's gender discrimination and Thompson claims were properly

dismissed on summary judgment.

Affirmed.

WE CONCUR:

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21