FILED
`
`SAN MATEO COUNTY
`APR .2 6 2121
`
`/
`
`CLERK
`IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
`IN AND FOR THE COUNTY OF SAN MATEO
`
`'
`
`RONG JEWETT, SOPHY WANG, and XIAN
`MURRAY, on behalf of themselves, and
`ELIZABETH SUE PETERSEN, MARILYN
`CLARK, and MANJARI KANT, individually
`and on behalf of the Class,
`
`Plaintiffs,
`
`V.
`
`ORACLE AMERICA’ INC"
`
`Defendant.
`
`Case No.: 17CIV02669
`
`ORDER DENYING DEFENDANT’S
`MOTIONS FOR SUMMARY
`JUDGMENT OR, IN THE
`ALTERNATIVE, SUMMARY
`ADJUDICATION OF ISSUES
`AGAINST PLAINTIFFS CLARK,
`KANT, AND PETERSEN
`Assigned for all purposes to the
`Honorable V. Raymond Swope
`Complaint Filed: June l6, 2017
`Trial Date: No date set
`
`17CIV02669
`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE,
`SUMMARY ADJUDICATION AGAINST PLAINTIFFS CLARK, KANT, AND PETERSEN
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`On December 18, 2020, in Department 23, the Court heard argument on Defendant
`Oracle America, Inc.’s (“Defendant” or “Oracle”) three Motions for Summary Judgment or, in
`the Alternative, Summary Adjudication against Plaintiffs Marilyn Clark, Manjari Kant, and
`Elizabeth Sue Petersen, respectively (collectively, “motions”), with all parties appearing through
`their counsel of record.1 At that hearing, the Court ordered supplemental brieng
`on its
`Tentative Ruling denying the motions, which the parties subsequently submitted as ordered.
`Having considered all memoranda and evidence submitted in support of or in opposition to the
`motions, including the supplemental briefs, the complete record, oral argument of counsel, and
`the relevant law, and for the reasons set forth below, the Court DENIES the motions in their
`
`‘
`
`i
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`entirety.
`
`BACKGROUND
`
`Representative Plaintiffs Clark, Kant, and Petersen (collectively “P1aintiffs”) brought this
`action against Oracle, alleging Oracle paid them, and other female employees in Oracle’s
`Product Development, Support, and Information Technology (“IT”) functions in California,
`thousands of dollars less per year than it paid men who performed substantially similar or equal
`work, with no legitimate reason for the lower pay, in violation of California’s Equal Pay Act,
`In addition to their claim under the EPA, Plaintiffs also brought
`Labor Code § 1197.5 (“EPA”).
`claims for unlawful and unfair business practices under Business and Professions Code§ 17200,
`claims for declaratory judgment pursuant to Code of Civil Procedure § 1060, claims for past
`wages due under Labor Code §§ 201-203, and a Private Attorney General Act claim under Labor
`Co'de §§ 2698-26995.
`On April 30, 2020, this Court granted Plaintiffs’ motion for class certication
`appointed Plaintiffs Clark, Kant, and Petersen as class representatives? The certied
`
`class
`
`and
`
`1 By the agreement of the parties, the individual claims of former Plaintiffs Rong Jewett,
`Xian Murray, and Xiang “Sophy” Wang were dismissed on March 27, 2019, after Oracle had
`its motions for summary judgment but before it had led
`its reply.
`led
`.2 Oracle sought a writ of mandate with respect to the Class Certication Order, which the
`Court of Appeal denied on June 2, 2020. On August 20, 2020, the California Supreme Court
`denied Oracle’s petition for review.
`
`-2-
`17c1v02669
`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY
`ADJUDICATION AGAINST PLAINTIFFS KANT, CLARK, AND PETERSEN
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`inéludes “[a]11 women employed by Oracle in California in its Information Technology, Product
`Development, or Support job functions, excluding campus hires and managerial positions, at any
`time during the time period beginning June l6, 2013 through the date of trial in this action.”
`Class Cert. Order at 25:16-1 9. Class notice has been sent, and the/deadline for opting out has
`‘The class includes over 3,000 women.
`On the same date that Plaintiffs led
`their motion for class certication, Oracle chose to
`
`passed.
`
`le
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`the subj e'ct early motions for summary judgment, or in the alternative for summary
`adjudication, against Plaintiffs Clark, Kant, and Petersen. Oracle seeks summary adjudication on
`seyen issues: (l) Plaintiffs’ EPA claim, on the ground that Plaintiffs cannot establish aprima
`facie case under the EPA; (2) Plaintiffs’ EPA claim, on the ground that the undisputed evidence
`factors other than s’ex explain why Plaintiffs were paid less than their male
`shows that bona de
`comparators; (3) Plaintiffs’ ‘claim for failure to pay all wages due, on the ground that the claim
`fails because the underlying EPA claim fails; (4) Plaintiffs’ UCL claim, on the ground that the
`claim fails because the underlying EPA claim fails; (5) Plaintiffs’s UCL claim for injunctive
`relief, on the ground that Plaintiffs lack standing to seek injunctive relief because they are former
`employees; (6) Plaintiffs’ claim for declaratory relief, on the ground that the claim fails because'
`the underlying EPA claim fails; and (7) Plaintiffs’ claim for declaratory relief, on the ground that
`Plaintiffs lack standing as former employees.
`Issues 3, ’4, and 6, as framed by Oracle, are
`entirely derivative of Issues l and 2.
`Oracle’s motions for summary judgment argue that Plaintiffs cannot prove that their male
`comparators were paid more for substantially similar work, and alternatively, that bona de
`factors justify any pay differentials. Oracle’s opening brief and Separate Statements address
`only four purported male comparators for Plaintiff Clark, three purported male comparators for
`Plaintiff Kant, and four purported comparators for Plaintiff Petersen. See Memo. of Points &
`Authorities in Support of Oracle’s Motions for Summary Judgment or, in the Alternative,
`Summary Adjudication (“MPA”) at 47:23—71 :2; Clark UMF Nos. 1-43; Kant UMF Nos. 1-37;
`Petersen UMF Nos. 1-51. Oracle contends that these specic
`individuals are the only relevant
`male comparators for purposes of Plaintiffs’ EPA claim.
`-3-
`17c1v02669
`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY
`ADJUDICATION AGAINST PLAINTIFPS CLARK, KANT, AND PETERSEN
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`In opposition, each Plaintiff argues that her alleged comparators are not simply the
`individuals identied by Oracle in its motion, but rather all men in California having the
`specic
`same job code as her. See Plaintiffs’ Fourth Ainended Class Action Complaint, 15.
`Plaintiffs
`contend that Oracle uses an extremely detailed job classication
`system, such that all employees
`In support of their
`assigned to a job code perform substantially equal or similar work.
`contention, Plaintiffs submitted substantial evidence, including Oracle’s own documents,
`testimony from persons designated by Oracle as Persons Most Qualied
`(“PMQ”), and expert
`testimony. With respect to their EPA claim, Plaintiffs submitted evidence regarding the
`centralized and systematized manner in which Oracle classies
`employees and determines
`employee pay through the use of a detailed company-wide system ofjob codes, in which Oracle
`groups employees by job function, job specialty, job family and responsibility level, and assigns
`salary range. Plaintiffs’ Separate Statements, Additional Material Facts
`each job code a specic
`(“AMF”)3 No. 103; Declaration of Kate Waggoner in Support of Oracle’s Motion (“Waggoner
`Decl.”), Exh. D at 653, 655-58. Plaintiffs’ evidence includes deposition testimony from Oracle’s
`PMQ designee that individuals within job code share “basic skills, knowledge, and abilities,” and
`“similar” “levels of responsibility and impact.” Declaration of John T. Mullan in Opposition to
`Oracle’s Motion (“Mullan Decl.”), Exh. I (Deposition Excerpts of Oracle PMQ Kate Waggoner
`(“Waggoner”)) at 22121-8; 223:16-224f17; 225: l 1:19; 229:7-9.
`Plaintiffs’ evidence also includes detailed reports and expert analyses and opinions from
`two experts—Professor David Neumark, Ph.D., a Labor Economist, and Leaetta Hough, Ph.D.,
`In her report, Dr. Hough analyzed Oracle’s job
`an Industrial Organization Psychologist.
`system and concluded that jobs within Oracle’s specic
`classication
`job codes are substantially
`similar or equal with respect to skills, effort, and responsibilities. Mullan Dec1., Exh. R
`Exh. A (“Hough
`(Declaration of Leaetta Hough in Support of Motion for Class Certication,
`Report”)) 11111 0, 18, 48; Exh. H (Deposition Excerpts of Hough (“Hough”)) at 181 :22-182z6,
`
`3 All three Plaintiffs’ additional material facts are identical save for a few references to
`tables in the Declaration of David Neumark Re: Summary Judgment (“Neumark Decl.”), Exh. A,
`to them, so “AMP” cites refer to each Plaintiffs’ additional material facts.
`that are specic
`“UMF” cites will identify the specic Plaintiff by name.
`-4-
`17crvo2669
`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY
`ADJUDICATION AGAINST PLAINTIFFS CLARK, KANT, AND PETERSEN
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`185:1 1-188:7, 188225-1909, 198:19-199:6, 20:17-21 :15, 53:1 1-23, 212:5-21, 131:24-13226,
`132:21—134z4; see also Neumark Decl., Exh._B, (“Neumark January 2019 Report”) 118.b (“. . .I
`have treated persons in the same job code and grade as performing substantially equal or similar
`work, which is how Oracle treats such persons. . .”).
`In his report, Professor Neumark analyzed Oracle’s pay records and found disparities in
`pay and bonus between men and women within the same job code, including the three named
`Plaintiffs. Neumark Decl., Exh. A, (“Neumark March 201 9 Report”).4 He found that the overall
`estimated base pay shortfall for Plaintiff Clark was approximately 14 percent. Id. 1125, Table 1.
`He noted, “Her estimated sex gap in base pay is 10.68 standard deviations, which is so large that
`the probability of observing a difference this large in the data if in fact there was no gender gap
`in pay with the control variables described above is less than 1 in 1 billion.” Id. Professor
`Neumark’s estimated base pay shortfall for Plaintiff Kant Was 12.7 percent, with an estimated
`sex gap in base pay of 8.79 standard deviations. Id. {[26, Table 2. According to Professor
`Neumark, again, the probability of observing a gap this large if there was no gender gap in pay is
`also less than 1 inl billion. Id. The estimated bonus shortfall for Plaintiff Kant was
`approximately 152 percent, with an estimated sex gap in bonus‘pay of 9.46 standard deviations.
`Id. 1127, Table 3. Finally, Professor Neumark’s overall estimated base pay shortfall for Plaintiff
`Petersen was approximately 22.6 percent, with an estimated sex gap in base pay of 27.46
`standard deviations. He again concluded that this gap was “so large that the probability of
`observing a difference this large in the data if in fact there was no gender gap in pay with the
`control variables described above is less than l in 1 billion.” Id. 1128, Table 4.
`In addition,
`Professor Neumark extracted from Oracle’s payroll data, separately for each Plaintiff, lists of
`men in her job code who were paid more than she was. Id. Tables 15 (Clark), 16 (Kant), 17
`
`(Petersen).
`In support of their UCL claim, Plaintiffs submitted Oracle’s own documents and
`testimony from Oracle’s PMQ designees supporting their allegation Oracle’s earlier use of prior
`
`4 Oracle initially moved to strike Professor Neumark’s March 2019 Report but
`subsequently withdrew the motion to strike.
`
`-5-
`17CIv02669
`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY
`ADJUDICATION AGAINST PLAINTIFFS CLARK, KANT, AND PETERSEN
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`pay to set salary levels, including for acquisition hires such as Plaintiffs. See, e.g., AMF 130,
`131; see also Mullan Decl., Exh. I (Waggoner) at 166225-168124, 359215-364z8; Exh. LL (“a
`new employee may be hired by Oracle as a result of an acquisition in which case the ‘acquisition
`hire’ comes to Oracle usually in their same job and salary”); Exh. MM at 00004856 (giving
`employee om acquired company anything other than the same salary was a “non-standar ”
`and CEO approval); Holman-Harries Decl., Exh.
`offer requiring “a strong business justication”
`A at 8.
`In their reports, Plaintiffs’ experts Dr. Hough and Professor Neumark opined that
`women have historically been paid less than men as a result of Oracle’s policy and practice of
`relying on prior pay to set initial salary had a disparate impact on the compensation of its female
`employees, including Plaintiffs Clark, Kant, and Petersen. AMF No. 132; Neumark Decl., Exh.
`B 11118.d., 68-72, Exhs. 39-41; Hough Report W22, 27-28, 31, 51.
`On reply, Oracle introduced evidence from its own competing expert, Dr. Ali Saad,
`Ph.D., previously submitted in support of Oracle’s opposition to Plaintiffs’ Motion for Class
`(“Saad Report”), to challenge the testimony of Professor Neumark and Dr. Hough.
`Certication
`Plaintiffs did not object to Oracle’s'introduction of Dr. Saad’s report on reply.
`LEGAL STANDARD
`Summary judgment is a drastic measure appropriate only where “all the papers submitted
`show that there is no triable issue as to any material fact and that the moving party is entitled to a
`judgment as a matter of law.” Cal. Code Civ. Proc. § 4(37c(c); see Aguilar v. Atl. Richeld
`Co.
`(2001) 25 Ca1.4th 826, 850. A defendant seeking summary judgment bears the initial burden of
`showing that the “action has no merit.” Id. § 437c(o). To satisfy this burden, a moving
`defendant must show that “one or more elements of the cause of action
`cannot be established,
`or that there is a complete defense to the cause of action.” Id. §437c(p)(2). A defendant moving
`for summary judgment has the burden to show it is entitled to judgment with~ respect to all
`theories of liability asserted by plaintiff in the complaint. Lopez v. Superior Ct. (1996) _45
`Ca1.App.4th 705, 717. If a moving defendant fails to address all theories of liability asserted by
`the plaintiff, the defendant fails to carry the initial burden of showing the nonexistence of a
`triable issue ofmaterial fact, and the Court must deny summary judgment. Id.
`-6-
`17c1v02669
`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY
`ADIUDICATION AGAINST PLAINTIFFS CLARK, KANT, AND PETERSEN
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`The moving party “bears an initial burden of production to make a prima facie showing
`of the nonexistence of any triable issue of material fact.” Aguilar, 25 Ca1.4th at 850.
`If, and only
`if, the moving party meets this burden, the burden of production then shifts to the non-moving
`party “to make a prima facie showing of the existence of a triable issue of material fact.” Id.
`The burden of persuasion remains with the moving party. Id.
`In determining whether there
`exists a dispute as to any material fact, the Court must view the evidence in the light most
`favorable to the nonmoving party and resolve any doubts in favor of the nonmoving party.
`Schachter v. Citigroup, Inc. (2009) 47 Ca1.4th 610, 618; Binder v. Aetna Life Ins. C0. (1999) 75
`Ca1.App.4th 832, 838 (“the evidence must be incapable of supporting a judgment for the losing
`party in order to validate the summary judgment”); Nazir v. United Airlines, Inc. (2009) 178
`Ca1.App.4th 243, 283 (“[S]ummaryjudgment should not be granted unless the evidence cannot
`support any reasonable inference for plaintiffs").
`The Court may only grant a defendant summary adjudication of a cause of action if it
`completely disposes of the cause of action. Code Civ. Proc. § 437c(i)(l). Summary adjudication
`may not be granted as to factual theories or issues within a cause of action. Nazir, 178
`Ca1.App.4th at 251.
`
`‘
`
`/
`
`I.
`
`,3 ‘6
`
`DISCUSSION
`Summary Judgment and Summary Adjudication as to Plaintiff’s EPA Claim
`(Issues 1 and 2) Is DENIED.
`California’s EPA was amended, effective January l, 2016, to expand the protections
`afforded under the California EPA, which had previously mirrored the federal EPA in requiring
`equal pay for “equal work on jobs the performance of which requires equal skill, effort and
`responsibility, and which are performed under similar working conditions.” Plaintiffs’ RIN,
`Exh. D (Cal. Labor Code § 1197.5(a) (eff. until Dec. 31, 2015) (emphasis added); see 29 U.S.C.
`§ 206(d)(1) (federal EPA). Under California’s Fair Pay Act, S.B. 358 (2015), effective January
`1, 2016,,which remains the law today, the California EPA now requires equal pay to men and
`women for “substantially similar work, when viewed as a composite ofskill, effort and
`responsibility,” unless the employer can prove an afrmative
`defense that the entire pay disparity
`is justied by a reasonably applied “seniority system, merit system,” “system that measures
`-7-
`17CIV02669
`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY
`ADIUDICATION AGAINST PLAINTIFFS CLARK, KANT, AND PETERSEN
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`earnings by quantity or quality of production,” or “bona de
`factor other than sex, such as
`education, training or experience.’_’ Labor Code § 1197.5(a) (eff. Jan. 1, 2016) (emphases
`added). Under both versions of the law, the EPA is a “strict liability” statute, i.e., plaintiffs need
`not prove discriminatory intent. See id.; Miranda v. B & B Cash Grocery Store, Inc. (1 1th Cir.
`1992) 975 F.2d 1518, 1533; Maxwell v. City ofTucson (9th Cir. 1986) 803 F.2d 444, 446.
`Oracle moves for summary adjudication of Plaintiffs’ EPA claim on the ground that (1)
`Plaintiffs cannot establish aprimafacie case under the EPA, and (2) the undisputed evidence
`establishes Oracle’s affirmative defense that bona de
`factors other than sex explain the entire
`wage gap between Plaintiffs and their male comparators. For the reasons that follow, summary
`adjudication is denied as to both issues.
`
`A. Summary Judgment Is Denied Because Oracle Failed to Address'lAll
`Theories of Liability Asserted by Plaintiffs.
`Although Plaintiffs have the burden of proof at trial, “the initial duty to define the issues
`presented by the complaint and to challenge them factually is on the defendant who seeks a
`summaryjudgment.” Conn v. Nat’l Can Corp. (1981) 124 Cal.App.3d 639, 638. If a plaintiff
`pleads a cause of action based on multiple theories, as plaintiffs are permitted to do, a defendant
`seeking summary judgment has the burden “to affirmatively react to each theory
`or condition
`which supports a theory, if the motion is to be successful.” Id. at 639; see also Lopez, 45
`Cal.App.4th at 717; Santa Clara v. All. Richeld
`Co. (2006) 1‘37 Cal.App.4th 292, 332-33
`(defendant’s burden in moving for summary judgment is to “negate plaintiff’s theories of
`liability as alleged in the complaint”) (brackets and internal quotation marks omitted). “The
`permits that portion of
`moving defendant whose declarations omit facts as to any such theory
`In that event the plaintiff properly uses his own complaint.
`the complaint to be unchallenged.
`He does so, not to controvert the moving party’s declaration, or in lieu of one for himself, but
`rather to show that certain facts or theories remain unchallenged.” Conn, 124 Cal.App.3d at 639.
`Plaintiffs’ Fourth Amended Class Action Complaint (4ACAC) alleges that “Oracle
`Plere,
`employees with the same job title employed in Information Technology, Product Development,
`or Support job functions throughout California” performed substantially similar or equal work.
`
`-8-
`17c1v02669
`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY
`ADJUDICATION AGAINST PLAINTIFFS CLARK, KANT, AND PETERSEN
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`4ACAC 1H 5. Oracle’s opening brief conrms Oracle’s understanding that it is each Plaintiff’s
`contention that “individuals who share her job title throughout California performed substantially
`similar work.” MPA at 18:22-23 (citing Connell Decl., Exhs. A-F (Resps. to Special
`Interrogatories Nos. 5 & 6)); MPA at 25:14-1 8 (quoting this portion of Plaintiffs’ complaint). As
`under Plaintiffs’ theory of the case,
`explained in the Court’s Order Granting Class Certication,
`they can prove the elements of their EPA claim by establishing that (1) persons employed in the
`January l, 2016, and
`same job codes at Oracle were performing substantially similar work aer
`substantially equal work prior to that date; and (2) women (here, Plaintiffs) were compensated
`less than men employed in the same job codes. Class Cert. Order at 8:21-25. Thus, it was
`Oracle’s burden as the party moving for summary judgment to adduce evidence demonstrating
`that Plaintiffs could produce no evidence proving this theory of liability.
`Yet Oracle admits it did not offer any evidence in its Separate Statements even
`addressing Plaintiffs’ theory that men and women who share a job title or job code performed
`substantially similar (after January l, 201 6) or equal (before January l, 201 6) work, and that they
`Reply ISO Oracle’s
`were paid less than men in their job code without lawful justication.
`Motions for Summary Judgment or, in the Alternative, Summary Adjudication (“Reply”) at 4:19-
`23 & n.2 (4:27-28, 5:18).
`Instead, Oracle’s Separate Statements focus exclusively on a small
`subset of individual male employees-identied by name in Plaintiffs’ depositions or written
`discovery responses as comparators within Plaintiffs’ personal knowledge. See Clark UMF Nos.
`1-43; Kant UMF Nos. 1-36; Petersen UMF Nos. 1-50. Oracle’s failure to address the dozens of
`other male employees who shared a job title or job code with each Plaintiff (all of Whom are
`ascertainable from Oracle’s own payroll data)—let alone adduce evidence demonstrating that
`Plaintiffs could not prove that any of these men performed substantially similar or equal work to
`Plaintiffs, or conclusively establishing that any pay disparity between all of them and Plaintiffs is
`factors other than sex—is fatal to its motions.
`llly by bona de
`justied
`Oracle argues that it was not required to address unnamed men within the same job code
`as Plaintiffs, even though identied by Plaintiffs as male comparators performing substantially
`alone cannot,
`similar or equal work, because “shared job title, description, or other classications
`
`17CIV02669
`'-9-
`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY
`ADJUDICATION AGAINST PLAINTIFFS CLARK, KANT, AND PETERSEN
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`as a matter of law, establish that any two employees are legally relevant comparators,” MPA at
`74: 1 5-17, and therefore “a plaintiff ‘must identify aparticular male ‘comparator’
`and may
`not compare herself to a hypothetical or ‘composite’ male,” id. at 26:20-21 (quoting Strag v. Bd.
`ofTrustees, Craven Comm. Coll. (4th Cir. 1995) 55 F.3d 943, 948 (emphasis added by Oracle)).
`See id. at 25: 1 8-20 (characterizing Plaintiffs’ theory as “that they can meet theirprimafacie
`burden by pointing to shared job title alone”); Reply at 5213—1 8; Oracle’s Motion Contesting the
`Court’s Tentative Ruling Denying Oracle’s Motion for Summary Judgment or, in the
`Alternative, Summary Adjudication (“Motion Contesting TR”) at 14:20-26.
`Oracle’s argument is misplaced. The cases on which Oracle relies do not stand for the
`proposition that, as a matter of law, an EPA plaintiff may never pursue a theory of liability that
`identifies male comparators based on a shared job title, or that an employer’s job coding system
`can never result in a proper comparator relationship. Oracle’s position is contrary to the law,
`which permits EPA plaintiffs to identify an ascertainable group of male employees based on job
`as her comparators. See, e.g., Hall v. Cnty. ofLos Angeles (2007) 148
`title or classication
`appropriate comparator group was male employees within
`Ca1.App.4th 3 1 8, 324 (nding
`plaintiffs same job title); Corning Glass Works v. Brennan (1974) 417 U.S. 188, 193
`(comparators were male night shift inspection workers); Brennan v. Owensboro-Daviess County
`Hosp. (6th Cir. 1975) 523 F.2d 1013, 1014 (comparators were‘all males employed as orderlies);
`E.E.0.C. v. Maricopa County Comm. Coll. Dist. (9th Cir. 1984) 736 F.2d 510, 513-14 (plaintiff
`aid assistants). Here, Plaintiffs’ complaint
`comparators as male nancial
`appropriately identied
`allegation identifying their comparators as all male employees in California within each
`Plaintiff’s same job code was proper and legally cognizable. The identities of these men are
`readily ascertainable om Oracle’s own payroll records. See Neumark Dec1., Exh. A 1137,
`It was therefore Oracle’s burden in its moving papers to adduce evidence
`Tables 15-17.
`demonstrating that Plaintiffs could produce no evidence proving this theory of liability.
`To do that, Oracle needed to demonstrate that Plaintiffs did not possess, and could not
`reasonably obtain, evidence that one or more men in her job code (1) performed substantially
`similar or equal work, and (2) was paid more than her. Oracle did not do so.
`Instead, .Oracle
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`ADJUDICATION AGAINST PLAINTIFFS CLARK, KANT, AND PETERSEN
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`argued that Plaintiffs could not produce such evidence because “the case law is clear that shared
`. alone cannot, as a matter of law, establish that any two employees are legally
`job title .
`relevant comparators.” MPA at 74: 1 5-17. But the converse is not true. That is, “shared job title
`alone” is not evidence that work is dissimilar, or not equal.
`Because Oracle failed to address most of each Plaintiffs comparators in its moving
`papers, summary judgment must be denied. See San Jose Constr., Inc. v. S.B.C.C., Inc. (2007)
`155 Ca1.App.4th 1528, 1534 (“If the defendant fails to meet this initial burden, it is unnecessary
`to examine the plaintiff s opposing evidence; the motion must be denied”),
`Though Oracle’s failure to address in its moving papers all of Plaintiffs’ theories of
`liability is itself sufcient
`grounds to deny summary judgment, Oracle’s motion also fails for
`each of the following separate and independent reasons.
`
`B. Plaintiffs’ Prima Facie Case Under the Equal Pay Act Presents Triable Issues
`of Fact (Issue 1).
`To establish aprimafacie violation of the ’EPA, Plaintiffs need only show that (1) they
`and male employees performed substantially similar work (from January 1, 2016 onward) or
`substantially equal work (before January 1, 2016), and (2) they were paid less than those men for
`that work. Labor Code § 1197.5(a); see Green v. Par Pools Inc. (2003) 111 Ca1.App.4th 620,
`evidence from which
`626; Hall, 148 Ca1.App.4th at 323-24. Plaintiffs have presented sufcient
`that both elements of their primafacie EPA claim have been
`a reasonable jury could nd
`Even considering Oracle’s evidence on reply, the record as a whole presents disputed
`satised.
`issues of material fact concerning Plaintiffs’ primafacie case, which precludes summary
`adjudication on Issue 1.
`
`1. Plaintiffs’ Evidence Creates a Triable Issue of Fact as to Whether
`Plaintiffs and Their Male Comparators Performed Substantially Similar
`or Equal Work.
`As this Court previously held in granting class certication,
`“[w]hether the jobs at issue
`in this case are substantially equal or similar is a question of fact for a jury.” Class Cert. Order at
`10:1-4 (quoting Beck— Wilson v. Principz' (6th Cir. 2006) 441 F.3d 353; Tomka v. Seiler Corp. (2d
`Cir. 1995) 66 F.3d 1295, 13 11 (“[I]t is for the trier of fact to decide if [there] is a signicant
`
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`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY
`ADIUDICATION AGAINST PLAINTIFFS CLARK, KANT, AND PETERSEN
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`enough difference in responsibility to make the jobs unequal”)); see also Lavin-McEleney v.
`Marist Coll. (2d Cir: 2001) 239 F.3d 476, 480.
`Here, Plaintiffs Clark, Kant, and Petersen identied
`as their male comparators all male
`employees within the same job code as Plaintiffs in California.
`In moving for summary
`judgment, Oracle addressed specic men as male comparators within each Plaintiff’s same job
`known to Plaintiffs at the time of their discovery responses.
`code whose names were specically
`As to both all men within the same job code as Plaintiffs and the specically
`identied
`individual comparators, there is evidence from which a reasonable factnder
`could conclude that
`the male comparators and Plaintiffs performed substantially similar (post-January l, 201 6) or
`substantially equal (pre-2016) work.
`a. All Male Employees Within the Same Job Code as Plaintiffs
`Plaintiffs have submitted substantial evidence from which a reasonable factnder
`
`could
`
`i
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`I
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`job codes—of which there are thousands—classify
`conclude that Defendant’s highly specic
`employees by the skill, responsibility, and effort needed to do their job. See AMF Nos. 101-121
`and evidence cited therein. Such evidence includes:
`o Deposition testimony from Kate Waggoner, Oracle’s PMQ designee about Oracle’s
`systems, including the following21“[P]eople in
`I compensation and job classication
`each of these job codes share certain basic skills, knowledge, and abilities,” Mullan
`Dec1., Exh. I (,Waggoner) at 225:1 1-19, and persons in job codes share “similar”
`“levels of responsibility and impact,” id. at 22927-9. See AMF No. 111.
`o Oracle’s Global Job Table, which groups Oracle employees by job functions, job
`specialty, job family, and responsibility level into job codes, each ofwhich has a
`education and experience requirements. See, e.g.,
`salary range and identied
`specic
`Mullan Decl., Exh. -I (Waggoner) at 209219-21 1 :23, 221:1-8, 223216-224217, 225:1 1-
`job codes for Oracle’s Product
`19; Exh. O (Pltfs’Exh. 43) (Job Code Table reecting
`Development, Support and IT functions); Exh. Y at 00005282; Exh. V (Pltfs.’ Exh.
`51) at 12; see also Waggoner Decl., Exh. D at 670. See AMF No. 111.
`
`‘
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`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY
`ADIUDICATION AGAINST PLAINTIFFS CLARK, KANT, AND PETERSEN
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`Oracle’s Global Compensation Training Power Point. Mullan Decl., Exh; Z
`(explaining uniform use and importance ofjob codes and salary ranges). See AMF
`No. l 16.
`
`Oracle’s documents establishing that Oracle has determined that persons with the
`functional competencies, or skills. See, e.g.,
`same job code share the same specic
`Mullan Decl., Exh. TT (Pltfs’ Exh. 13) at 00004918; see also Exh. Y at 00005282
`to jobs and represent the most important
`(“Functional competencies are specic
`capabilities or skills needed to perform successfully in each job.”). See AMF No.
`1 15 .
`
`V
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`,
`
`Oracle’s documents describing responsibility levels for Oracle employees by career
`level, which is incorporated into job code. See, e.g., Mullan Decl.,lExh. RR. See
`AMF No. 114.
`
`Oracle’s documents establishing that how an employee is compensated within a job
`code salary range shOuld be determined by Oracle tenure and performance. See, e.g.,
`Mullan Decl., Exh. Z at 00000392, Exh. T at 17. See AMF No. 115.
`Deposition testimony from Anje Dodson, Oracle’s PMQ on Training and
`Performance Evaluations, including testimony that if an employee transfers from one
`product team to another product team in the same job code, there is no required
`additional training. Mullan Decl., Exh. J (Dodson) at 126:14-128:1. See AMF No.
`l 18.
`The Report and testimony of Plaintiffs’ expert Industrial Organizational (IO)
`Psychologist Leaetta M. Hough, Ph.D., based on her review of Oracle’s policies and
`practices pertaining to job classification, job code, and compensation, including her
`opinion that “At Oracle women in the same job codes as men perform the same or
`substantially similar work. . ..” Hough Report W1 0, 18, 48; see also Mullan Decl.,
`Exh. H (Hough) at 131224-13226, 132121—13424, 181:22-182z6, 185:1 1-18817, 188225-
`that within this job code, these are similar
`190:9, .l 98:19-199:6 (Oracle has “specied
`jobs in terms of the abilities, the skills, the effort, the responsibility that’s required to
`-13-
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`ORDER DENYING DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY
`ADJUDICATION AGAINST PLAINTIFFS CLARK, KANT, AND PETERSEN
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`perform those jobs. The working conditions, they’re similar, acco