Pak v. Github, Inc. CA1/1 ( 2021 )

Filed 8/18/21 Pak v. Github, Inc. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
AGNES PAK,
Plaintiff and Appellant, A159585
v. (San Francisco City &
GITHUB, INC., County
Super. Ct. No. CGC-18-
Defendant and Respondent.
57570177)
Agnes Pak (Pak) sued her former employer, Github, Inc. (Github) under
California’s Equal Pay Act (EPA), asserting claims for unequal pay and for
retaliation. She appeals from a defense summary judgment. We affirm.
BACKGROUND
Pak was employed as the associate general counsel at Github for 11
months. Before she accepted the position, she twice negotiated the offered
compensation package upwards, before accepting the offer of $255,000 in
salary, a $15,000 bonus, and 85,000 shares of stock. She signed an at-will
employment agreement reflecting that compensation. She also negotiated
that she would report to the general counsel, Julio Avalos, rather than to Tal
Niv, then the vice-president, law and policy, as originally planned.
Prior to being hired as associate general counsel, Pak had been
searching for a job after being terminated from a general counsel position at
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ClearCare, Inc. After being told by a GitHub employee she knew that
GitHub’s general counsel, Julio Avalos, was a “great guy . . . incredibly smart,
insightful and a great boss,” Pak spoke with Avalos about working for
GitHub.
Avalos asked Pak to draft a job specification for her proposed role to
include “corporate work, stock admin, all of the commercial paper,
international subs, etc.” Pak drafted a job specification for a “VP Legal/GC
role.” Avalos responded that he was “green-lighting the creation of the new
senior role to oversee the transactional and corporate side of the house. Once
that job spec is final and live, we’ll reach out.” He noted, however, the role
would be an associate general counsel position, not a VP legal/general counsel
position. Avalos explained “Your write-up had assumed a VP Legal/GC role,
but as we discussed at our last meeting, and given our recent hiring of a CFO
and my upcoming de-occupation of Finance, the CEO and I have been
assuming an AGC position. The position will almost certainly be scoped in
that way, which may well change your thinking about it.” Pak replied she
had no objection to that narrowed role, stating “I would be totally okay with
the AGC title and the somewhat narrowed scope of duties to corporate and
transactional matters-it will give me the ability to focus on some of your more
immediate needs. . . . I think there is a lot that I can contribute, regardless of
title.”
In January 2017, Avalos told Pak GitHub was interviewing internal
candidates for the “AGC-Corporate & Transactional group position,” and he
would decide whether to interview external candidates. He then offered Pak
a short-term contract attorney position. Pak accepted and worked in the
contract role from February to May 31, 2017.
2
In April 2017, GitHub offered Pak an associate general counsel position
with a focus on “ ‘corporate, commercial, and transactional law.’ ” Pak
recognized the position “had been scoped at a Senior Director level,” and that
she was not being hired for a general counsel role.
After negotiating a higher compensation package, Pak almost
immediately began complaining to Avalos on numerous occasions that her
compensation was low. She asserted she should be paid commensurate with
vice-presidents at the company. Pak claimed she raised the issue of
increasing her compensation in every one-on-one meeting with Avalos.
Avalos reviewed Pak’s 2017 performance in early 2018. Although he
praised her performance in some areas, he also had serious criticisms. These
included her failure to work cooperatively with others in the legal
department, leading to “schisms . . . a feeling of balkanization, factions, and,
in some cases, outright toxicity.” He also noted her “understanding of
product and company systems lags behind,” she had “moments of indiscretion
with stakeholders outside of the organization,” “stepp[ed] into areas that are
not under her scope and confus[ed] teams and procedures,” and she lacked
“attention to detail on non-transactional issues (objectively wrong black letter
law advice to Talent Acquisition).”
Pak was still given a “small raise to $262,650” and a $7,500 bonus. She
claimed Avalos promised to make the salary increase retroactive to June 1,
which he denied. When her paystub did not reflect a retroactive pay
increase, she sent an e-mail to HR, stating in part: “ ‘Am I being
constructively terminated? I’ve been working in a job for which the company
is not paying me for and has not been right sized-I’ve been complaining since
last year. I have no desire to continue to work being paid significantly below
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my contribution. Let’s talk about a package so I can move on. . . .” (Boldface
and underscoring omitted.)
The HR department set up a meeting between Pak and Avalos for the
following week. After the meeting was rescheduled, Pak told her direct
reports and others she was on a “ ‘work strike’ ” “until [Avalos] either gives
me a raise or fires me (and packages me out).” She stayed out for a full week,
although she claimed she “stayed home and worked.” Pak had imposed a no
vacation policy on her own team for the final week of the quarter because
“ ‘timely legal assistance for the deal flow was important.’ ”
Avalos considered terminating Pak when he learned of her work strike,
but he decided to give her a chance to explain her behavior. Prior to their
meeting he sent her an e-mail reviewing her performance and noting the
areas of concern.
At their meeting, Avalos noted his feedback on Pak’s performance, and
said he did not think Pak could be happy at GitHub. Pak replied she could be
happy if she were paid “fairly.” Pak claims Avalos explained he was not
going to pay her “ ‘what you think you’re worth,’ ” that GitHub’s pay surveys
showed she was being paid fairly, and that Pak was not going to be paid a VP
level salary. Pak replied, “ ‘Great. So what stock number are we talking
about.’ ” Avalos stated he could not “simply give her stock.”
Pak claimed Avalos ended the meeting by saying, “ ‘All of this
complaining about compensation and head count is unprofessional. And I
can’t have it from my legal person,’ ” and HR should “package her out.” April
24, 2018 was Pak’s last day of employment with GitHub.
Pak then sued GitHub for violations of the EPA, alleging she received
less compensation than Niv or Avalos. Seven months later, she filed an
4
amended complaint adding a cause of action for retaliation for allegedly
making complaints about unequal pay under the EPA.
DISCUSSION
Standard of Review
Our standard of review of a grant of summary judgment is well-settled.
“We review a grant of summary judgment de novo; we must decide
independently whether the facts not subject to triable dispute warrant
judgment for the moving party as a matter of law.” (Intel Corp. v. Hamidi
(2003) 30 Cal.4th 1342, 1348.)
“A defendant moving for summary judgment meets its burden of
showing that there is no merit to a cause of action if that party has shown
that one or more elements of the cause of action cannot be established or that
there is a complete defense to that cause of action. (Code Civ. Proc., § 437c,
subds. (o)(2), (p)(2).) If the defendant does so, the burden shifts back to the
plaintiff to show that a triable issue of fact exists as to that cause of action or
defense. In doing so, the plaintiff cannot rely on the mere allegations or
denial of his or her pleadings, ‘but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists. . . .’ [Citation.] A triable
issue of material fact exists ‘if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard of
proof. . . .’ ” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 864,
quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
“While we must liberally construe plaintiff’s showing and resolve any
doubts about the propriety of a summary judgment in plaintiff’s favor,
plaintiff’s evidence remains subject to careful scrutiny. [Citation.] We can
find a triable issue of material fact ‘if, and only if, the evidence would allow a
5
reasonable trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard of proof.’ ”
(King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) “A
party cannot avoid summary judgment by asserting facts based on mere
speculation and conjecture, but instead must produce admissible evidence
raising a triable issue of fact.” (LaChapelle v. Toyota Motor Credit Corp.
(2002) 102 Cal.App.4th 977, 981.) “Moreover, plaintiff’s subjective beliefs in
an employment discrimination case do not create a genuine issue of fact; nor
do uncorroborated and self-serving declarations.” (King v. United Parcel
Service, Inc., at p. 433.)
The Equal Pay Claim
The California EPA provides in pertinent part: “(a) An employer shall
not pay any of its employees at wage rates less than the rates paid to
employees of the opposite sex [or another race or ethnicity] for substantially
similar work, when viewed as a composite of skill, effort, and responsibility,
and performed under similar working conditions, except where the employer
demonstrates: (1) The wage differential is based upon one or more of the
following factors: (A) A seniority system. (B) A merit system. (C) A system
that measures earnings by quantity or quality of production. (D) A bona fide
factor other than sex, such as education, training, or experience.” (Lab. Code,
§ 1197.5, subd. (a)(1)(A)-(D).)
“The EPA exists to ensure that employees performing equal work are
paid equal wages without regard to gender. To prove a violation of that basic
principle, a plaintiff must establish that, based on gender [race, or ethnicity],
the employer pays different wages to employees doing substantially similar
work under substantially similar conditions. If that prima facie showing is
made, the burden shifts to the employer to prove the disparity is permitted by
6
one of the EPA’s statutory exceptions. . . . If an exception is established, the
burden shifts back to the plaintiff to prove pretext.” (Hall v. County of Los
Angeles (2007) 148 Cal.App.4th 318, 323–324 (Hall), fn. omitted.) There is no
requirement a plaintiff show discriminatory intent as an element of the
claim. (Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 622–625, 629
(Green).)
“[I]n order for a plaintiff initially to establish a prima facie case under
the Equal Pay Act, she must show not only that she is being paid lower wages
than her . . . comparator, but also that she is performing work substantially
equal in skill, effort, and responsibility to her comparator under similar
working conditions; i.e. the . . . comparator must be properly selected.” (Strag
v. Board of Trustees (4th Cir. 1995) 55 F.3d 943, 950 (Strag), italics omitted.)
The Applicable EPA Standard
Pak claims 2016 amendments to California’s EPA impose “more
rigorous standards for employers” than the standards under the federal EPA,
and the trial court therefore erred in relying on federal authorities in
considering Github’s motion for summary judgment.1
As Pak points out, as amended by the 2016 legislation, the pertinent
inquiry under the state EPA is whether the plaintiff was paid less “for
substantially similar work when viewed as a composite of skill, effort and
responsibility.” (Lab. Code, § 1197.5, subd. (b), italics added.)
The federal statute provides in pertinent part: “No employer having
employees subject to any provisions of this section shall discriminate, within
1 “Gender-based discrimination in rates of pay to employees, whether
male or female, is prohibited by the Equal Pay Act of 1963, which is a portion
of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 206(d).”
(Miranda v. B & B Cash Grocery Store, Inc. (11th Cir. 1992) 975 F.2d 1518,
1526.)
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any establishment in which such employees are employed, between
employees on the basis of sex by paying wages to employees in such
establishment at a rate less than the rate at which he pays wages to
employees of the opposite sex in such establishment for equal work on jobs
the performance of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions, except where such
payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a
system which measures earnings by quantity or quality of production; or (iv)
a differential based on any other factor other than sex. . . .” (29 U.S.C.S.
§ 206(d)(1), italics added.)
Although the federal statute uses the phrase “equal skill, effort, and
responsibility,” cases applying the statute have explained “although [a
plaintiff] need not show that the jobs are identical, [he or she] must
demonstrate ‘that [he or she] performed substantially similar work for less
pay.’ ” (Heatherly v. University of Alabama Board of Trustees (11th Cir. 2019)
778 Fed.Appx. 690, 692.) And whether the work is “substantially similar” is
determined by whether the job “ ‘require[ed] substantially similar skill, effort
and responsibilities, and . . . was performed under similar working
conditions.’ ” (David v. Board of Trustees of Community College District No.
508 (7th Cir. 2017) 846 F.3d 216, 230.)
California cases decided prior to the 2016 amendment generally relied
on the federal courts’ interpretation of the federal EPA. “Because Labor Code
section 1197.5 is substantively indistinguishable from its federal counterpart,
California’s court rely on federal authorities construing the federal statute.”
(Hall, supra, 148 Cal.App.4th at p. 323, fn. 4; see Green, supra,
111 Cal.App.4th at p. 623.)
8
The trial court therefore concluded “the change in the operative
language [of Labor Code section 1197.5] did not materially alter the
definition of ‘equal work’ or the analysis of that issue reflected in prior state
and federal cases. (Compare Stats. 2015, ch. 546, § 2 [‘substantially similar
work, when viewed as a composite of skill, effort, and responsibility, and
performed under similar working condition’] with former Lab[or] Code
§ 1197.5(a) [‘equal work on jobs the performance of which requires equal skill,
effort, and responsibility, and which are performed under similar working
conditions’].) To the contrary, the amended standard was very close to that
which has long been applied by courts under the federal Equal Pay Act,
29 U.S.C. §206(d).”
Indeed, the legislative history of the 2016 amendment explains that the
purpose of the amendment was to clarify “[e]xisting case law [that had]
developed in such a way as to make it unclear whether ‘equal work’ means
exactly the same job or a substantially similar job.” (Committee Report,
Analysis of Sen. Bill No. 358 (2015-2016 Reg. Sess.), Sen. Judiciary
Committee Report, p. 7, April 27, 2015.) “Existing law generally prohibits an
employer from paying an employee at wage rates less than the rates paid to
employees of the opposite sex in the same establishment for equal work on
jobs the performance of which requires equal skill, effort, and responsibility,
and which are performed under similar working conditions. . . . [¶] This bill
would . . . prohibit an employer from paying any of its employees at wage
rates less than those paid to employees of the opposite sex for substantially
similar work, when viewed as a composite of skill, effort, and responsibility,
9
as specified.” (Sen. Bill No. 358 (2015-2016 Reg. Sess.), ch. 546, Legis.
Counsel’s Digest.)2
Thus, the amendment to Labor Code section 1197.5 simply brought
that section in line with case law under the federal EPA. The trial court
therefore correctly observed that “the amended standard was very close to
that which had long been applied by courts under the federal Equal Pay Act,
29 U.S.C. §206(d).” The court did not err in its understanding of the
applicable standard.
Comparators Did Not Perform Substantially Similar Work
Pak identified two GitHub employees, Avalos and Niv, as supposed
comparators whose compensation exceeded hers. She asserts they “did not
share Pak’s status as [a] female of Asian heritage.” Pak alleged Niv is a
female “from Israel and her race and ethnicity is Jewish,” while Avalos is a
Hispanic male of Guatemalan descent.
Pak acknowledges any comparison of her job and Avalos’s is
“complicated” because he “received a number of titles after he was first hired
in 2012.” Nevertheless, Pak asserts she and Avalos had “substantially
similar jobs . . . at least prior to 2015” when he “was in positions more similar
to Pak’s.” (Capitalization omitted.)
2 Pak also claims the trial court applied the wrong burden-shifting
analysis, asserting the Ninth Circuit analysis should apply. She relies on
Rizo v. Yovino (9th Cir. 2020) 950 F.3d 1217, which held “EPA claims do not
require proof of discriminatory intent. [Citations.] EPA claims have just two
steps: (1) the plaintiff bears the burden to establish a prima facie showing of
a sex-based wage differential; (2) if the plaintiff is successful, the burden
shifts to the employer to show an affirmative defense. No showing of pretext
is required.” (Id. at p. 1223.) However, as we shall discuss, Pak did not meet
her burden of establishing a prima facie showing of a sex or ethnicity-based
wage differential. We therefore need not and do not reach this issue.
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Avalos began work at GitHub in 2012 as its first, and at the time only,
in-house lawyer, and was responsible for all legal issues. Prior to joining
GitHub, he practiced commercial and intellectual property law at Orrick,
Herrington and Sutcliffe, followed by a corporate counsel position at Yelp.
In December 2013, GitHub promoted Avalos to general counsel, and in
March 2014, promoted him again to chief legal officer. Avalos’s duties
included advising GitHub’s executives and board of directors on legal issues,
attending board meetings, and serving as the board secretary. He also
continued to manage the growing GitHub legal department and was
responsible for budgeting and “headcount.” Avalos integrated GitHub’s
development platform into the legal department’s workflow. He also was the
company spokesperson on intellectual property (IP) policy, open source, and
legal issues regarding technology and the internet.
Avalos spent about 35 percent of his time on legal projects, 35 percent
on building and managing the legal department, 25 percent on advising
management and the board, and five percent on spokesperson duties. Less
than five percent of his time was focused on supporting the sales team and
stock administration.
In October 2015, GitHub promoted Avalos to chief administrative
officer. Avalos supervised and led all the “ ‘general and administrative’ ”
departments, including finance and accounting, tax, facilities, deals desk,
human resources and human resources operations, and the administration of
international subsidiaries. He oversaw about 40 employees, including human
resources managers, recruiters, accountants, business analysts, and office
managers. Avalos led the creation of international entities and the recruiting
and hiring of C-level and executive leadership. Avalos also maintained his
general counsel/chief legal officer role, in which he served as the primary
11
source of strategy for the legal department, reviewed significant legal issues,
and advised the board. These duties occupied about 40 percent of his time.
Avalos received legal industry recognition for his work. In 2014, the
recorder awarded Avalos its inaugural award for legal innovation, and in
2015, GC Magazine and Legal 500 named Avalos the top technology in-house
counsel in the United States.
As Pak acknowledges, in 2016 Avalos’s responsibilities expanded
substantially. He was responsible for working with the CEO and co-founder
on both day-to day management and future business and product strategy.
GitHub also assigned Avalos the task of overseeing branding, messaging, and
visual design.
In March 2017, GitHub promoted Avalos to chief business officer. In
this role, he supervised over 100 employees and hired senior leaders. He
operated as the “public face of GitHub,” speaking with the press and
policymakers. He also “worked with technical teams to better align business
strategy with product and engineering vision.” Avalos also continued to serve
in his general counsel/chief legal officer role, which then occupied about 25
percent of his time. GitHub appointed him to the board of directors in early
2017.
In August 2017, GitHub again promoted Avalos, this time to chief
strategy officer. He maintained the bulk of his prior duties, while being given
further authority over company and product strategy. Avalos played a “key
role” in the Microsoft acquisition of GitHub, including meeting with the
Microsoft CEO, reviewing and revising documents, and working on
regulatory approvals.
Even considering Avalos’s skill, efforts and responsibility solely in the
years prior to 2016, Avalos and Pak did not perform substantially similar
12
work. Avalos always had considerably more responsibility.3 Notably, Avalos
began his career at GitHub as its first in-house attorney, and became its first
general counsel, termed the “ ‘Legal Badass.’ ” He established and built the
legal department, hired legal department staff, controlled the “legal spend,”
budget and headcount, and managed the department of over 10 people. He
rapidly took on more work and increased responsibility. Indeed, by 2016,
GitHub had promoted Avalos from in-house lawyer, to general counsel, to
chief legal officer, to chief administrative officer.4 Pak does not dispute
Avalos built the GitHub legal department “from the ground up.” While
certain tasks performed by Pak and Avalos may have been similar, the scope
of their positions was not. Avalos always held a position with Github with
significantly greater responsibilities than Pak ever had at the company.
Pak asserts her “skills were greater than Avalos[’s]” because Avalos
“only graduated from law school in 2006 and thus did not possess anything
close to Pak’s skills or decades of experience” and “their efforts were similar.”
Pak does not identify her claimed greater skills. Contrary to Pak’s
claim, the fact that she graduated from law school before Avalos does not
demonstrate her skills were superior. Avalos had specialized skills and in-
depth experience specific to GitHub. Indeed, Avalos was recognized in the
legal field as “the top technology in-house counsel in the United States” in
2015. In contrast, Pak’s experience did not result in her having the same
3 “The equal pay standard applies to jobs the performance of which
requires equal responsibility. Responsibility is concerned with the degree of
accountability required in the performance of the job, with emphasis on the
importance of the job obligation. Differences in the degree of responsibility
required in the performance of otherwise equal jobs cover a wide variety of
situations.” (29 C.F.R. § 1620.17(a).)
4 Avalos was subsequently promoted to chief business officer, then to
chief strategy officer.
13
skills. She had never built an in-house legal department from the ground up,
nor did she have sustained legal experience with any one company, having
held over 10 jobs prior to GitHub.5
As the trial court observed, Pak “was not hired to act as General
Counsel. . . . [Pak] oversaw corporate and commercial work. . . . [Her] most
significant responsibility was assisting the sales team. . . . [She] also had
large administrative responsibilities and spent 10 to 33 percent of her time
on stock administrative duties. . . . [Pak] spent less than 5 percent of her
time supervising her 3-person team. . . . [She] did not hire personnel and did
not participate in Board meetings.” Pak simply never held a position with
the same level of responsibility or that was as all-encompassing as Avalos’s.
Pak also identified Niv as a comparator.6 Avalos hired Niv in August
2013 as a Fellow “focused on IP and open source research.”
Niv had served for three years as a lieutenant in the Technology Unit
of the Intelligence Corps of the Israeli Army. She had both computer science
and law degrees from Tel Aviv University. Niv had worked as a systems
analyst and product manager for several startup companies. She then moved
to the United States to pursue a PhD in law and technology from the
University of California, Berkeley School of Law.
At GitHub, Niv served as Avalos’s “right hand.” She assisted him in
building and expanding the legal department, developing GitHub’s “vision,
policies and thought leadership” for IP and open source philosophy. She was
responsible for “internal-facing work regarding the intellectual property
5Indeed, she was terminated from one position and left another
because she did not get along with the CFO.
6 Niv had a lower salary than Pak’s until February 2017, when she
received a raise to the same level as Pak’s starting salary. She subsequently
received additional raises.
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portfolio” and “external-facing policy work advocating for software
developers, open source and technology with policy makers and legislators.”
Niv participated in all legal department hiring decisions and managed the
budget and “outside legal spend.” She led a project revising GitHub’s terms
of service.
Niv spent 40 percent of her time on policy work, 30 percent on IP
strategy projects, and 30 percent assisting Avalos manage and expand the
legal department. She did not do any “commercial (i.e. sales team support) or
corporate work other than very minimal support for Avalos and the team.”
In September 2015, Avalos promoted Niv to director of legal.
“Everyone” in the legal department other than Avalos reported to her, a
range of five to ten employees. In that role, she was in charge of the “day-to-
day management of the entire Legal department, which included the policy,
corporate, privacy, product, intellectual property, employment, commercial
and legal operations functions.”
In January 2017, Avalos again promoted Niv, this time to vice-
president, law and policy. She continued to lead the legal department, and
also built a separate policy department where she led a team of four. Niv
continued to manage the other five members of the legal department, as well
as the policy department.
In her VP role, Niv spent about 35 percent of her time on legal
operational management duties, 35 percent on policy department
management responsibilities, 20 percent of her time on legal projects, and 10
percent of her time on policy work.
Despite Niv’s broad responsibilities in management, policy work, and
legal projects, Pak claims Niv’s “level of responsibilities was not materially
different from Pak’s.” (Capitalization omitted.) To the contrary, Niv’s work,
15
in contrast to Pak’s, was always weighted more towards technical IP and
open source policy work and public advocacy. She also had significantly more
managerial responsibility, supervising five members of the legal department,
which included the IP, privacy, employment, legal operations, and product
functions, as well as the three-person policy department. Pak, in contrast,
supervised only three members of the legal department, two lawyers and one
contract administrator, and spent less than five percent of her time doing so.
Her responsibilities were focused on sales work, stock administration duties,
and “legal advice on business development and finance matters.”
As the trial court concluded, “Ms. Niv similarly performed tasks that
were totally different than [Pak’s]. Ms. Niv was the head of [GitHub’s]
Intellectual Property department and Open Source Strategy. . . . Ms. Niv did
not spend any time on sales or corporate work. . . . [She] was in charge of the
day-to-day management of the legal department and she spent most of her
time on management and policy matters.”
The undisputed facts demonstrate both Avalos and Niv had greater and
substantially different responsibilities than Pak. When viewed as a
composite of skill, effort, and responsibility, Pak did not perform
substantially similar work to either comparator.
The Retaliation Claim
Invocation of the EPA
Pak advanced two theories of retaliation. The first is predicated on an
assertion that she invoked the EPA in the course of complaining about her
compensation.
A plaintiff alleging an EPA retaliation claim under this theory must
show she “invoke[d] or assist[ed] in any manner the enforcement of this
section.” (Lab. Code, § 1197.5, subd. (k)(1).) Simply complaining about
16
compensation in general is not enough: “To fall within the scope of the
antiretaliation provision, a complaint must be sufficiently clear and detailed
for a reasonable employer to understand it, in light of both content and
context, as an assertion of rights protected by the statute and a call for their
protection.” (Kasten v. Saint-Gobain Performance Plastics Corp. (2011)
563 U.S. 1, 14 [considering antiretaliation portion of Fair Labor Standards
Act (29 U.S.C. § 201 et seq.)]; see Kassman v. KPMG LLP (S.D.N.Y. 2013)
925 F.Supp.2d 453, 473 [“[N]one of [plaintiffs’] complaints rises to the level of
specificity required to state a retaliation claim . . . as there is no indication
that any Plaintiffs were actually complaining of EPA or NYSEPA violations
such that these complaints constituted ‘an assertion of rights protected by the
statute’ and a ‘call for their protection.’ ”].)
Pak claims she invoked the EPA in the course of complaining to Avalos
about her compensation. However, there is no evidence raising a triable
issue that this is so.
In her complaint, Pak did not allege that she invoked the EPA in
making her numerous complaints about her compensation.
And at her deposition, Pak said no such thing, despite exhaustive
questioning by defense counsel about the specifics of every one of her
compensation-related communications with Avalos. We have reviewed the
entirety of the excerpts of Pak’s deposition transcript in the record, and while
Pak testified to many complaints about her compensation, she did not once
testify that she accused Avalos of violating the EPA or paying her less
because of her gender, race or ethnicity. Defense counsel also asked Pak
repeatedly if she knew of any other communications regarding her
compensation about which she had not testified, and she responded that she
did not. Indeed, in response to counsel’s question “[I]n terms of complaints
17
that you made to Mr. Avalos, you think you’ve testified about all of th[e]se?”
Pak responded: “I believe so.”
However, in opposition to GitHub’s motion for summary judgment, Pak
supplied a declaration recounting a different version of events. She asserted
therein that “in a meeting with Mr. Avalos, I repeated my complaint that my
compensation was less than others and I explained to him the Equal Pay
Act.” She further declared “[a]fter I complained to Mr. Avalos about the EPA
violation related to my compensation, I recall I sent him an email with
information about the EPA from a government website.” She did not attach a
copy of this supposed e-mail to her declaration, claiming “GitHub has refused
to produce the evidence which would show in writing I made a claim under
the EPA. . . .” She also attempted to excuse her failure to make any mention
of this e-mail at her deposition, stating “I may not have mentioned this email
at my deposition as I was not asked about that series of communications and
did not have my emails or slack messages to refresh my recollection.”
In opposing a motion for summary judgment, a party cannot create an
issue of fact by a declaration which contradicts her prior discovery responses.
(Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12; Benavidez v. San Jose Police
Dept. (1999) 71 Cal.App.4th 853, 860.) “ ‘In determining whether any triable
issue of material fact exists, the trial court may, in its discretion, give great
weight to admissions made in deposition and disregard contradictory and
self-serving affidavits of the party.’ ” (Id. at p. 860.) Where “ ‘there is a clear
and unequivocal admission by the plaintiff, himself [or herself], in his [or her]
deposition . . . we are forced to conclude there is no substantial evidence of
the existence of a triable issue of fact.’ ” (D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 21, italics omitted, disapproved on another
18
ground in Woodland Hills Residents Ass’n., Inc. v. City Council (1979)
23 Cal.3d 917, 944.)
The trial court therefore properly sustained GitHub’s objections to
Pak’s “conflicting declaration,” finding Pak “contradicts her sworn deposition
testimony in paragraphs 39-40 of [her] declaration. Defendant’s deposition
questions to [Pak] posed broad, direct questions regarding [Pak’s]
compensation-related communications. Such questions encompassed
conversations, written communications, or complaints regarding the Equal
Pay Act or regarding other employees’ pay. There was a ‘clear and
unequivocal admission’ that [Pak] had testified in her deposition regarding
all of her compensation-related communications. . . . [T]he Court finds that
[Pak’s] declaration is inconsistent with her deposition, and so her declaration
statements must be disregarded.”
Pak asserts the trial court erred because GitHub assertedly
“acknowledged (backhandedly) that the email Pak described in her
declaration, with its discussion of the EPA, did exist, but argued that,
because it was not in evidence (after Pak’s deposition GitHub identified the
email and withheld it in its privilege log), Pak’s description of the content of
the email––which Pak could not read to refresh her recollection—was
‘impermissibly vague.’ ”
While GitHub acknowledged in its reply memorandum that Pak had
sent an e-mail to Avalos, it did not concede the e-mail raised the EPA in
connection with Pak’s compensation claims. Indeed, in its opposition to Pak’s
motion to compel production of that e-mail and other documents, GitHub
provided a declaration by Avalos stating: “Pak ‘sent me an email with a
website link as part of a privileged project being discussed by the GitHub
Legal Department, together with HR and the Employee Experience &
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Engagement team. When I received the email, I understood that it was in
reference to this privileged project and I treated it as such.’ ”
The trial court denied Pak’s motion to compel production of that e-mail,
and it is not a part of the record as Pak has not challenged the court’s
discovery ruling on appeal. She thus has forfeited any claim in connection
with that e-mail. In any case, Pak’s carefully worded declaration about her
claimed “explanation” of the EPA to Avalos and the e-mail she sent him with
a link to a government website about the EPA does not demonstrate she
invoked the EPA in connection with her complaints about her compensation.
In sum, there is no evidence raising a triable issue that Pak invoked
the EPA or that she complained to Avalos or anyone else at GitHub that her
compensation was improperly based on her gender, race, or ethnicity.
Discussing Compensation
Pak’s second retaliation theory is predicated on the provision of the
EPA that prohibits retaliation for discussing employee wages.
In this regard, the statute states: “An employer shall not discharge, or
in any manner discriminate or retaliate against, any employee by reason of
any action taken by the employee to invoke or assist in any manner the
enforcement of this section. An employer shall not prohibit an employee from
disclosing the employee’s own wages, discussing the wages of others,
inquiring about another employee’s wages, or aiding or encouraging any
other employee to exercise his or her rights under this section. Nothing in
this section creates an obligation to disclose wages.” (Lab. Code, § 1197.5,
subd. (k)(1).)
In her complaint, Pak did not allege that GitHub retaliated against her
for discussing her own or other employees’ wages. Rather, the operative
complaint alleged simply that: “Pak complained to senior officers at
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GITHUB, including Avalos, an officer and member of the board of Directors of
GITHUB, about her unequal pay during 2017 and 2018. [¶] . . . As a result of
her lawful complaint, GITHUB retaliated against Pak and discharged her.
Specifically, Avalos told Pak he was terminating her because of her
complaints about unequal pay.” It is well-established, of course, that a
motion for summary judgment need meet only the claims made in the
operative pleading, and a defendant moving for summary judgment need not
anticipate claims the plaintiff theoretically could have, but failed to pursue.
(Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [“the
burden of a defendant moving for summary judgment only requires that he or
she negate plaintiff’s theories of liability as alleged in the complaint; that is, a
moving party need not refute liability on some theoretical possibility not
included in the pleadings”].)
Pak now claims she was “fired for discussing her own and others’
compensation, an activity specifically protected under California’s EPA.”7
(Capitalization omitted.) And she asserts an e-mail from Avalos “shows that
GitHub violated the EPA as a matter of law,” focusing on a statement therein
that “[Pak] started weaponizing information that she is only allowed access to
by merit of being the company’s lead internal corporate attorney.” Pak
maintains it is “obvious” this referred to compensation information. and
claims the e-mail identifies the “primary reason . . . for firing Pak.”
Not only has Pak taken this language out of context, it does not, in any
case, say what Pak claims is “obvious” or purport to state the “primary”
reason she was fired.
She also made this claim in passing in her opposition to the summary
7
judgment motion.
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The entirety of the portion of Avalos’s e-mail regarding Pak stated:
“[S]orry about [Pak]—we will send out note. [B]etter live; the situation
escalated around the protest that she’s been staging. [¶] We had been going
down the path of transition and I opened that door to her several times—even
asked her what her own idea of a graceful exit would be—and she ignored
those and kept on with her tone-deaf and frustrating compensation and
equity demands. [¶] Two things happened here: [¶] . . . she started
weaponizing information that she is only allowed access to by merit of being
the company’s lead internal corporate attorney; and [¶] . . . she admitted [to]
callously and unprofessionally and antagonistically and ridiculously to what
we already knew—that she had gone on PTO during the last two weeks of the
quarter out of protest and in order to force us to meet her compensation
demands that were not in line with market data. [¶] Either one is a redline
in most cases. But in the legal department especially, and in the context of
the attorney-client relationship, it’s pretty outrageous.”
In context, Avalos’s comment about “weaponizing” information does not
suggest Pak was fired for discussing compensation with other employees.
And there is no evidence that compensation data was “information that she is
only allowed access to by merit of being the company’s lead internal corporate
attorney.” 8 Indeed, Pak acknowledged that GitHub’s employee manual
expressly states, “We want to be clear: you can talk about your pay. The
legal language is below, but the gist is that it is ok to talk, chat, confabulate
or otherwise discuss your personal pay information with other Hubbers to the
extent you feel comfortable. There is no cone of silence. Teams that have
8 One of Avalos’s criticisms of Pak in her performance review was
regarding her “moments of indiscretion with stakeholders outside of the
organization.” (Italics added).
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work-related access to confidential pay information, like HR and Payroll, will
maintain that confidentiality.”
Thus, contrary to Pak’s assertion, what is apparent from the entirety of
the e-mail is that it was Pak’s work strike during the last weeks of the
quarter that was the final straw for GitHub.
DISPOSITION
The judgment is affirmed. Costs on appeal to GitHub.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A159585, Pak v. Github, Inc.
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