D. Scott Crook (7495)

Kathryn J. Steffey (10245)

SMITH HARTVIGSEN, PLLC

215 S. State Street, Suite 650

Salt Lake City, Utah 84111

Telephone (801) 413-1600

Facsimile (801) 413-1620

Attorneys for Claimant

BEFORE THE AMERICAN ARBITRATION ASSOCIATION
EMMANUEL D. KEPAS,
Claimant,
v.
EBAY, INC., a Delaware Corporation
Respondent. / :
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: / MEMORANDUM IN OPPOSITION TO RESPONDENT EBAY INC.’S MOTION FOR SUMMARY JUDGMENT
“CONFIDENTIAL”
This Document is subject to a Protective Orderand may not be examined or copied except in compliance with that Order
Case No. 77 460 00465 06

Claimant, Emmanuel D. Kepas, by and through his attorneys of record, respectfully submits his Memorandum in Opposition to Respondent eBay Inc.’s Motion for Summary Judgment.

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4816-0212-7106/KE007-001

TABLE OF CONTENTS

INTRODUCTION

RESPONSE TO STATEMENT OF UNDISPUTED MATERIAL FACTS

ARGUMENT

I. DEFENDANT EBAY’S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED

a. Mr. Kepas’ Retaliation Claim

i. Prima Facie Case

1. Adverse Employment Action

2. Causal Connection

ii. Evidence of Pretext

b. Mr. Kepas’ Sexual Harassment and Discrimination Claims

i. Sexual Harassment

1. Hostile Work Environment

2.Quid Pro Quo

ii. Discrimination on Basis of Sex

c. Mr. Kepas’ Age Discrimination Claim

d. Mr. Kepas’ Breach of Contract Claims

i. Contractual Relationship

ii. Claims Are Not Duplicative

e. Causation

CONCLUSION

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4816-0212-7106/KE007-001

INTRODUCTION

eBay claims that there are no disputed issues of fact such that summary judgment may be granted. However, as can be seen from Mr. Kepas’ responses below, it is evident that there are numerous disputed issues of material fact in this case. As such, eBay’s motion for summary judgment is improper and should be denied.

RESPONSE TO STATEMENT OF UNDISPUTED MATERIAL FACTS

Mr. Kepas responds to eBay’s Statement of Undisputed Material Facts as follows:

  1. eBay is an equal opportunity employer with policies that prohibit discrimination, harassment, and retaliation in the workplace.

Response: It is undisputed that eBay’s Fair Employment Policies state that “eBay maintains a strict policy prohibiting conduct which treats employees differently based on any status protected by law, such as race, color, religion, gender, physical or mental disability, pregnancy, medical condition, national origin, ancestry, age, sexual orientation, or marital status.” (eBay’s Fair Employment Policies at 1, attached hereto as Exhibit 1.) Additionally, eBay’s policies state that “[a]n employee or contractor who reports an incident in good faith should not fear any reprisal. Retaliation or reprisal is expressly forbidden and will be grounds for disciplinary action up to and including termination.” (Id. at 2.)

  1. eBay’s Discrimination and Harassment-Free Workplace Policy states that eBay is committed to providing a work environment that is free from discrimination, including sexual harassment, and that any employee who believes he or she has been harassed should immediately report the facts to a manager, human resources, or a management representative.

Response: Disputed. Although it is undisputed that eBay’s Discrimination and Harassment-Free Policy states that it is committed to providing a work environment that is free from discrimination, it states that

[a]ny employee or contractor who believes they have been subjected to conduct in violation of this policy, or who has witnessed such conduct, . . . should immediately report the facts of the incident or incidents and the name of the person(s) involved to any of the following individuals: your manager, Human Resources, the Legal department or a management representative.

(Id. at 2.)

  1. eBay hired Kepas as a manager in its eWatch department in July 2003.

Response: Undisputed. In July 2003, eBay hired Mr. Kepas, on a probationary basis, to work at its Draper, Utah, facility as the Manager of its eWatch Team. (See Affidavit of Emmanuel Kepas, dated September 15, 2006 (“Kepas Affidavit”) at ¶ 2, attached hereto as Exhibit 2.) In November 2003, after determining that Mr. Kepas satisfactorily completed his duties during the probationary employment period, eBay removed Mr. Kepas from probationary status and extended him an offer of continued employment as the Manager of the eWatch Team. (Id. at ¶ 3.)

  1. As the eWatch manager, Kepas managed a team of employees responsible for receiving complaints or reports of problems with the eBay Web site and escalating those reports to the appropriate individuals for resolution.

Response: Undisputed.

  1. The eWatch team consisted of day, swing, and graveyard shift employees.

Response: Undisputed. The eWatch department operated 24 hours per day, seven days a week. (See Deposition of Emmanuel Kepas (“Kepas Depo.”) at 33, 41. A copy of relevant portions of the Kepas Depo. is attached hereto as Exhibit 3.) At the time Mr. Kepas was hired in July 2003, until he was demoted in February 2005, he was the only manager of the team. (See id. at 37.)

  1. At the time he was hired, Kepas executed an acknowledgement stating that he had been “informed of the Company’s Anti-harassment policy during New Employee Orientation.”

Response: Disputed. Mr. Kepas executed the Employee Acknowledgement form after eBay determined that he had successfully performed his duties during the probationary employment period and extended Mr. Kepas an offer of continued employment as the Manager of the eWatch Team. (See Employee Acknowledgement, signed November 7, 2003, attached hereto as Exhibit 4; Kepas Depo. at 198; Kepas Affidavit at ¶¶ 2-3.)

  1. In addition to receiving a copy of the policy when he was hired, Kepas received training about the policy on more than one occasion.

Response: It is undisputed that Mr. Kepas testified that he believed he may have attended two training modules on eBay’s discrimination and harassment policies throughout his tenure at eBay. (See Kepas Depo. at 26.)

  1. Furthermore, as the eWatch manager, Kepas took steps to enforce eBay’s anti-harassment policies.

Response: Undisputed.

  1. In late 2004, Kepas had a telephone conversation with his supervisor, Carolyn Patterson, in which she expressed her dissatisfaction with his performance.

Response: Undisputed. Although Ms. Patterson testified that she did not have any problems with Mr. Kepas’ performance, (see Deposition of Carolyn Patterson (“Patterson Depo.”) at 8. A copy of relevant portions of the Patterson Depo. is attached hereto as Exhibit 5), she nonetheless “berate[d]” Mr. Kepas during a phone call on November 30, 2004, for alleged complaints and performance deficiencies, (see Kepas Depo. at 46.) However, when Mr. Kepas asked Ms. Patterson during the phone call for examples or details of his alleged performance problems, Ms. Patterson refused to provide any explanation. (See id. at 46-47.) Despite the fact that Mr. Kepas had consistently received meets or exceeds annual and quarterly performance ratings for 2004, had received very good scores and favorable comments in the Upward Feedback surveys from his department, and had not received any written warnings or other disciplinary action, Ms. Patterson nonetheless indicated in her phone call to Mr. Kepas that his alleged performance problems were “unaddressable.” (Mr. Kepas’ Notes to Jeff Anderson, dated December 6, 2004, at 2, attached hereto as Exhibit 6; see also Individual Performance Scores for Manny Kepas Q4 2003 –Q1 2006, attached hereto as Exhibit 7; eBay Upward Feedback Survey Q2 2004, Emmanuel Kepas, attached hereto as Exhibit 8; eBay Upward Feedback Survey Q4 2004, Emmanuel Kepas, attached hereto as Exhibit 9; Patterson Depo. at 8.)

Prior to Ms. Patterson’s November 30, 2004 phone call to Mr. Kepas, Ms. Jones, an eBay Vice President that was not currently over the eWatch Department, Jim Weber, an eBay Director, and Ms. Patterson had already “agreed in concept” to replace Mr. Kepas with Ms. Dutton. (Email from Mike Bringuel, Senior Director of Human Resources, to Jeff Anderson, Manager of Human Resources, dated November 19, 2004 (“November 19, 2004 Email”), attached hereto as Exhibit 10.) This decision was made despite “apparent recent performance concerns” on Ms. Dutton’s part, (id.), including specifically Ms. Dutton’s attempt to “single out the people who gave her poor [Upward Feedback comments].” (Email from Mike Bringuel, Senior Director of Human Resources, to Erin Earle, Director of Human Resources, dated December 3, 2004 (“December 3, 2004 Email”), attached hereto as Exhibit 11.) Although eBay’s Senior Director and Director of Human Resources expressed concerns about Ms. Dutton’s prior performance problems, Ms. Dutton nonetheless replaced Mr. Kepas as the eWatch Manager in February 2005. (November 19, 2004 Email; December 3, 2004 Email; Kepas Depo. at 44.) At the time of Mr. Kepas’ demotion, both Mr. Bringuel and Ms. Heitland did not support taking any “formal corrective action against Manny because his record of performance didn’t support that type of move.” (Draft of Investigation Summary, dated March 16, 2006 (“March 16th Draft of Summary”), at 1, attached hereto as Exhibit 12.)

Mr. Kepas was subsequently informed by Mark Fawson, a Director at eBay, that the decision to demote Mr. Kepas and transfer Ms. Dutton to the eWatch Manager position was made after a meeting was held between Ms. Patterson, Ms. Jones, Mr. Weber, and Ms. Dutton. During that meeting, Ms. Dutton lobbied for the eWatch Manager position by making a presentation. (See Kepas Depo. at 61-62; Deposition of Mark Fawson (“Fawson Depo.”) at 33, 64. A copy of relevant portions of the Fawson Depo. is attached hereto as Exhibit 13.) In addition to the fact that Ms. Dutton had recently been interviewed by HR regarding her attempt to identify an employee who gave her unfavorable feedback, it was apparent that, at the time of this meeting, Ms. Dutton’s current position in the TnS Department was being eliminated because Ms. Dutton’s direct reports “had become skilled enough that they were ready to report directly to” Ms. Dutton’s supervisor, and Ms. Dutton’s role “had become more technical and more product management focused, which were skills that she didn’t have.” (Deposition of Eric Salvatierra (“Salvatierra Depo.”) at 19-20. A copy of relevant portions of the Salvatierra Depo. is attached hereto as Exhibit 14.)

  1. Ms. Patterson told Kepas that he was “confrontational” and inflexible in the way he dealt with others, that he did not “see the Big Picture,” that he had not effectively cultivated and managed relationships in and outside his team, and that “there were no problems with eWatch but with him.”

Response: It is undisputed that, during the call, Ms. Patterson alleged that Mr. Kepas had several performance problems, although Ms. Patterson refused to provide Mr. Kepas with any specific examples or details. (See Mr. Kepas’ Notes to Jeff Anderson, dated December 6, 2004; Kepas Depo. at 46-47.) However, when asked under oath whether she had “any problems with Mr. Kepas’ performance,” Ms. Patterson responded, “No.” (Patterson Depo. at 8.) Moreover, Mr. Kepas’ record of performance at the time of his demotion did not support taking formal corrective action. (See March 16th Draft of Summary at 1.)

  1. Thereafter, in January 2005, Kepas (who was 43 years old at the time) was demoted from the position of eWatch manager to the position of analyst.

Response: Undisputed. Although Ms. Patterson alleged that Mr. Kepas had received unspecified complaints and had performance issues that were “unaddressable,” (Mr. Kepas’ Notes to Jeff Anderson, dated December 6, 2004, at 2), Mr. Kepas was not told that his demotion was a result of any performance deficiencies. (See Email from Janna Heitland, HR Manager, to Carolyn Patterson, dated December 16, 2004, attached hereto as Exhibit 15 (“If you and Susan decide to move Manny to a T25, I would recommend not taking his pay away—mostly because we are communicating to Manny that this would happen regardless of his performance.).) This was presumably so because Mr. Kepas’ record of performance did not support taking formal corrective action. (March 16th Draft of Summary at 1.) When asked whether Ms. Patterson, Mr. Kepas’ immediate supervisor, supported the decision to replace Mr. Kepas, she testified that she did not campaign for the change and that she supported the decision only in the sense that she “supported [her] manager.” (Patterson Depo. at 30-31.)

Moreover, although Mr. Kepas was demoted to an analyst, Ms. Dutton’s soon-to-be- supervisor, Chris Colgan, indicated that “he wanted to keep Manny in the [management] chain for some or even all of this team, even under Susan.” (Email from Mike Bringuel to Jeff Anderson, dated February 11, 2005, attached hereto as Exhibit 16.) And Ms. Heitland testified that, despite Mr. Kepas’ demotion, he continued to perform management responsibilities for the eWatch Department, necessitating a subsequent change in Mr. Kepas’ title back to Manager. (See Deposition of Janna Heitland (“Heitland Depo.”) at 97-99. A copy of relevant portions of the Heitland Depo. is attached hereto as Exhibit 17.)

  1. In February 2005, Susan Dutton (who was 37 years old at the time) was selected to replace Kepas as manager of the eWatch team.

Response: Disputed. As evidenced by the emails between Ms. Earle and Mr. Bringuel, Ms. Jones, Ms. Patterson, and Mr. Weber had already decided to replace Mr. Kepas with Ms. Dutton by, at least, November 19, 2004, nearly two weeks before Mr. Kepas received the phone call from Mr. Patterson. (See November 19, 2004 Email). This decision was made less than five months after it was reported to the Human Resources department that Ms. Dutton had attempted to single out an employee who had given her unfavorable feedback, resulting in an investigation by HR. (See Email from Jeff Anderson to Mike Bringuel, dated June 28, 2004, attached hereto as Exhibit 18 (“Unfortunately, the employee she is targeting overhead [sic] their conversation and he approached me yesterday. The manager is Susan Dutton.”); Notes of Investigation, attached hereto as Exhibit 19.) When the Senior Director and Director of Human Resources expressed their hesitation and concern with the decision, which would result in a promotion to Ms. Dutton, they received inconsistent explanations regarding Ms. Dutton’s performance problems. (See Email from Mike Bringuel to Erin Earle, dated December 3, 2004, attached hereto as Exhibit 20 (“Eric told Jim that he would support a promo for Susan in that move because the issues with her performance were related to her being a poor fit for the TnS role and would not be a factor in the eWatch role. But that doesn’t jive with the story Jeff told me about Susan trying to single out the people who gave her poor [Upward Feedback results].”) (emphasis added).)

According to Ms. Heitland, any “positions that would open are required to be posted.” (Heitland Depo. at 14.) Moreover, the policy at eBay is that the hiring manager performs the interview with the candidate and makes the final selection. (Id. at 18.) However, in this case, the eWatch position was never posted, and Ms. Patterson never interviewed Ms. Dutton or made the decision to hire her. (See Deposition of Susan Dutton (“Dutton Depo.”) at 111. A copy of relevant portions of the Dutton Depo. is attached hereto as Exhibit 21; Patterson Depo. at 29.)

  1. After his demotion, Kepas claims that he continued to manage all members of the eWatch team (including the day, swing, and graveyard shift employees), but now did so under Ms. Dutton’s direction.

Response: It is undisputed that, at the time Ms. Dutton replaced Mr. Kepas as the eWatch Manager, the only employee in that department that reported to her was Mr. Kepas. (See Dutton Depo. at 59; Kepas Depo. at 60.) Indeed, it was because Mr. Kepas continued to manage the eWatch team after his demotion that Ms. Heitland determined that his title should be changed to reflect his actual position of “Manager.” (Heitland Depo. at 98.)

  1. After she became the manager of the eWatch team, Ms. Dutton believed Kepas’ performance as a supervisor was deficient in numerous respects:

He really lacked the ability to show leadership with the team. I saw that there were ineffective one-on-ones. A lot of times the team would do what they want while he just sat at his desk and kind of buried his head in his work.

I noticed that when interacting with the employees it would be instead of more of a leader, it would be more of a buddy, friend type relationship. He wasn’t holding them accountable for their attendance adherence at that time. They pretty much were coming and going when they wanted to go.

I saw gaps in the way he demonstrated ownership. Instead of letting them do things, he would just take it on himself or—and I also saw a lack in his technical skills abilities. What he would do is he would go to most of the CSRs and have them write emails for him or have them proofread or ask them over and over again, “Now what happened? How does that happen? What does that mean?”

So a lot of early on the people management, people leadership abilities with some of the caveats that I added to that.

Response: Disputed. Although Ms. Dutton now claims that Mr. Kepas had performance deficiencies, she consistently rated Mr. Kepas as meeting or exceeding expectations and she never disciplined Mr. Kepas. (See Individual Performance Plan & Review Q1 2005, attached hereto as Exhibit 22; Letter from Susan Dutton to Emmanuel Kepas, dated May 4, 2005, attached hereto as Exhibit 23; Dutton Depo. at 162; Individual Performance Plan & Review Q2 2005, attached hereto as Exhibit 24; Letter from Susan Dutton to Emmanuel Kepas, dated July 26, 2005, attached hereto as Exhibit 25; Dutton Depo. at 186; Individual Performance Plan & Review Q3 2005, attached hereto as Exhibit 26; Individual Performance Plan & Review Q4 2005, attached hereto as Exhibit 27; Dutton Depo. at 142, 144, 146, 151, 155, 158, 166, 167, 181, 188, 189-90, 191, 196, 206, 209.) Moreover, Ms. Dutton actually presented Mr. Kepas with an eBay Behaviors Award in October 2005 for “his strength in leading the eWatch team . . . while Susan was on Sabbatical.” (See eBay Behaviors Award, attached hereto as Exhibit 28.) Finally, Ms. Dutton testified that, while she did “coach” Mr. Kepas during their one-on-ones, coaching is not discipline but is meant to “help make an employee be better at what they [sic] do.” (Id. at 62.)

  1. In an attempt to help Kepas improve his performance, Ms. Dutton regularly provided developmental feedback to Kepas on various issues she believed needed improvement.

Response: It is undisputed that Ms. Dutton provided Mr. Kepas with coaching during their one-on-ones, which included “positive feedback coaching and developmental coaching.” (Dutton Depo. at 62.) However, these one-on-one meetings were held in conformity with both eBay’s policy to hold monthly one-on-ones with each of its employees and Ms. Dutton’s practice of always giving “coaching or feedback” to the “people that are reporting to [her].” (See Heitland Depo. at 76; Dutton Depo. at 144-45.)

  1. Ms. Dutton coached Kepas on the way he conducted one-on-ones with members of his team and provided feedback to members of his team.

Response: Undisputed. As testified to by Ms. Dutton, this “coaching, feedback, positive feedback, performance feedback” did not constitute discipline of any kind and was consistent with her practice of providing feedback and coaching to “the people that are reporting to [her].” (Dutton Depo. at 62, 144-45.)