SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jul-03-2018 1:54 pm Case Number: Filing Date: Jul-03-2018 1:52 Filed by: SEAN KANE Image: 06401793 ORDER TINA HUANG VS. TWITTER, INC. ET AL 001006401793 Instructions: Please place this sheet on top of the document to be scanned. EJEEL EIE Superior Court of_Ca if_ornia County of San H'anczeco JUL 03 2018 CLER 4631: ?1:le COURT BY: Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO DEPARTMENT 305 TINA HUANG, for herself, and all others No. CGC-15-544813 similarly situated, Plaintiffs ORDER DENYING MOTION FOR CLASS CERTIFICATION TWITTER, INC. and DOES 1-10, Defendants. INTRODUCTION In Wal?Mart Stores, Inc. v. Dukes (2011) 564 US. 338, 352, 355-357 (Dukes I), the United States Supreme Court held that in a disparate impact case, an employer? 5 policy of giving managers discretion over promotion decisions cannot satisfy the commonality requirement necessary to achieve class certi?cation, unless a plaintiff can demonstrate that the employer had a ?common mode of exercising discretion? or a ?uniform employment practice? that serves as the ?glue? that ties class members? claims together. In the instant case, Plaintiff Tina Huang (?Plaintiff?) claims that Defendant Twitter, Inc." (?Defendant? or ?Twitter?) gives its managers discretion over whether the software engineers they supervise are nominated and considered for promotions, and that such policy has had a disparate impact on women software engineers at Twitter in that they are not promoted at the same rate as their male counterparts. Plaintiff seeks to certify a class of 135 women SWES who fall within the following eight job levels in Twitter?s Technical Ladder: (1) SWE 1, (2) SWE II, (3) Senior SWE, (4) Staff SWE, (5) Senior Staff SWE, (6) Principal SWE, (7) Distinguished SWE, and (8) Fellow SWE. As discussed - 1 - Huang v. Twitter CGC-15-544813 Order Denying Plaintiff?s Motion for Class Certi?cation ?irther below, the Court ?nds that Plaintiff failed to demonstrate that Twitter?s managers employed a ?common mode of exercising discretion? or that Twitter had a ?uniform employment practice? that affected the way managers exercised discretion and resulted in disparate impact on Women SWEs. Bound by the United States Supreme Court?s decision in Dukes I, this Court concludes that Plaintiff failed to satisfy the commonality requirement necessary to certify the proposed class. In addition, the Court also ?nds that Plaintiff?s claims are not typical of the class, and that Plaintiff failed to demonstrate that the class action mechanism is the superior method for adjudicating class members? claims in this case. For these reasons, the Court denies Plaintiff motion. Because a Belaire notice has been given and Plaintiff has contact information for 117 SWEs in the putative class, Plaintiff must notify these SWEs that class certi?cation has been denied and to apprise them of their right to move to intervene in this case or ?le an individual action. A Case Management Conference is set for July 25, 2018 at 9:30 am. for setting of pretrial and trial deadlines in Plaintiff?s individual case.1 I. PROCEDURAL HISTORY A. Plaintiff?s Complaint. On March 19, 2015, Plaintiff Tina Huang ?led this putative class action against Defendant Twitter, Inc. Plaintiffs operative complaint, ?led April 1, 2016, alleges that Twitter?s policy of giving managers discretion over whether the SWEs they supervise are nominated and/or considered for promotions within the company has disparately impaCted women SWES on Twitter?s ?Technical Ladder.?2 First Amended Complaint 1[ 2. Speci?cally, Plaintiff claims that Twitter ?does not have a formal job posting or job application procedure? with respect to promotions within the company. Id. 1] 23. Instead, while employees can ask to be considered for a promotion by checking a box on their regular performance reviews, the promotion process is essentially initiated when an employee?s manager, 1 In conjunction with its Opposition to Plaintiff?s Motion for Class Certi?cation, Twitter ?led a Motion to Exclude approximately 75 putative class members from inclusion in the class on the basis of signed separation agreements (3) and arbitration agreements (72). This motion is moot in light of the Court?s ruling on the instant motion and 15 addressed a separate Order. 2Plaintiff?s proposed class 13 limited to women SWEs who are on the ?Technical Ladder,? and does not include women on the ?Engineering Managers Ladder? a separate career ladder for employees who perform software engineering duties and also manage employees. Declaration of Julie Drake ISO Defendant Twitter, Inc?s Opposition to Plaintiffs Motion for Class Certi?cation 1] 9. .. 2 Huang v. Twitter CGC-15-544813 Order Denying Plaintiff 5 Motion for Class Certi?cation WHOM-PWNHOCOOQONUI-FUJNHO at his or her own discretion, ?proposes? a promotion case for a particular employee. Id. 11 24. The proposal is then reviewed by the employee?s colleagues and superiors, and then by a promotion committee that ultimately decides whether to promote the employee or not. Id. Plaintiff further alleges that ?manager[s] ha[ve] complete discretion over what is included in or excluded from the committee?s review of the employee?s candidacy? for promotion. Id. 11 25. In other words, if a manager does not support a promotion case, the employee would not be considered for a promotion. Id. Plaintiff alleges that managers in Twitter?s ?Technical Ladder? exercise their ?gatekeeping? function into the promotion process in a manner that is ?tainted with conscious or unconscious prejudices and gender-based stereotypes.? Id. ii 26. As a result, Plaintiff alleges that women SWEs are promoted to the upper rungs of the ?Technical Ladder? in fewer numbers and at a slower rate than their male counterparts. Id. 1} 28. Plaintiff asserts one cause of action against Twitter on behalf of herself and a putative class of women SWEs for sex discrimination in violation of the California Fair Employment Housing Act, California Government Code section 12940 et seq. B. The Motion for- Class Certification. On December 21, 2017, Plaintiff moved the Court for an order certifying a class in connection With her claims against Twitter. Twitter opposed the motion. The motion came on for hearing on May 9, 2018, and appearances are as noted in the record. On May.31, 2018, Twitter submitted further authority, and the Court deemed the matter submitted on that date. Plaintiff?s proposed class is de?ned as: ?All current and former female employees of Twitter with job titles Software Engineer I, Software Engineer 11, Senior Software Engineer, Staff Software Engineer, Senior Staff Software Engineer, Principal Engineer, Distinguished Engineer, Engineering Fellow, or similarly titled positions, employed in California between January 27, 2014, through the resolution of this action.? FAC 11 14. Plaintiff contends that there are approximately 135 class members. Declaration of Jason Lohr ISO Motion for Class Certi?cation (?Lohr Decl.?) 1] 7. Plaintiff argues that she satis?es the criteria for class certi?cation applicable to disparate impact claims. More speci?cally, she argues that this case satis?es the commonality requirement because: (1) all managers act as ?gatekeepers? in the promotion process, and (2) all managers are required to apply what Twitter calls the ?Impact? and ?How? criteria in deciding 3 - Huang v. Twitter CGC-15-544813 Order Denying Plaintiff?s Motion for Class Certi?cation whether an employee should be nominated and/or considered for a promotion. In opposing Plaintiff motion, Twitter argues that expert analysis of data shows no disparate impact, that Plaintiff cannot establish commonality based solely on Twitter?s policy of ?delegated discretion,? that Plaintiff? 5 claims are not typical of the class, that Plaintiff and class counsel are not adequate representatives of the class, and that the class action vehicle is not superior because Plaintiff has not demonstrated manageability or a viable trial plan. II. THE EVIDENCE A. Twitter?s Organizational Structure for Software Engineers. In 2010, Twitter had approximately 130 employees, 40-5 0% of Whom were SWEs. Declaration of Julie Drake ISO Defendant?s Opposition to Motion for Class Certi?cation (?Drake Decl.?) 1i 4. Between 2011 and 2013, the number of employees increased to ahnost 3,000. Id. 11 5. Currently, there are approximately 3,500 employees, and approximately 850 are SWEs. Id. 11 13. SWEs work in various ?branches? or ?pillars,? such as Data Scientists, Data Program Managers, etc. Id 11 11. These ?pillars? changed over time during the class period. Id. For example, in 2015, Twitter had 13 pillars, each containing anywhere from zero to hundreds of SWEs who reported to different levels of over 100 engineering mangers. Id. In 2016, there were nine pillars, each focusing on different Twitter services or products, and the engineering managers reported to different vice presidents of each organization. Id. 1m 1 1-12. Moreover, in 2012, Twitter established formal job levels and titles in the form of ?job ladders? in order to streamline the promotion process. Id. 11 5. The SWE Technical Ladder in particular consists of eight job levels: (1) SWE I, (2) S-WE II, (3) Senior SWE, (4) Staff SWE, (5) Senior Staff SWE, (6) Principal SWE, (7) Distinguished SWE, and (8) Fellow SWE. Id. 1] 6. The SWEs on the Technical Ladder are ?individual contributors,? meaning that they do not manage other employees. Id 9. Plaintiff?s proposed class is limited to 135 women SWEs who are on the Technical Ladder. Lohr Decl. 7. According to Julie Drake, Twitter?s Director of Compensation, no employee has ever held the role of Fellow SWE, only one employee has ever held the position of Distinguished SWE, and only four people in the history of the company have held the position of Principal SWE. Drake Dec]. 11 7. -4- I Huang v. Twitter CGC-15-544813 Order Denying Plaintiff?s Motion for Class Certi?cation Twittcr?s Promotion Practices During the Class Period, Managers? ?Gatekecping? Role, and the ?Impact? and ?How? Criteria. Promotion policies varied thrOughout the class period. Drake Decl. 1[ 14. As of early 2013, to be considered for a promotion, an employee needed a promotion packet that included feedback from a speci?ed number of peers, depending on the level of promotion sought. Id. 17. By late 2013, promotions to SWE II, Senior SWE, and Staff SWE were decided in manager meetings within the pillar in which the employee worked, while promotions to Senior Staff SWE and above were decided by ?cross- pillar? promotion committees, which were comprised of other SWEs who held positions in the promotion level sought or higher. Id. 111] 17-19, 25. From the beginning of the class period, employees were allowed to ?self-select? via a drop?down menu whether they thought they should be promoted, and employees were tasked with securing peer feedback in connection with their promotion packets while their managers were free to provide supplemental feedback. Id. 11 20. In late 2014, Twitter changed the promotion process such that promotion committees were required to determine promotions for the Staff SWE position. Id. 1[ 23. In 2015, Twitter changed the promotion process again, requiring that promotions to SWE II and Senior SWE be decided by a promotion committee made up of eight to ten engineers from within the pillar. Id. 25. Plainti? claims that Twitter?s managers act as ?gatekeepers? in the promotion process by deciding who is nominated and] or considered for a promotion, and when. Mm. at 4. In her declaration, Plaintiff states as follows: ?Though Twitter claimed anyone could be up for a promotion at any time, in practice your manager and the top engineering leadership were the gatekeepers. Unless you got a ?tap on the shoulder? from the manager, there was no realistic way you could even get a promotion packet to the promotion committee, let alone be approved.? Declaration of Tina Huang (?Huang Decl.?) 7. Plaintiff also submitted the declarations of two other putative class members who stated that it was ?common knowledge? in Twitter that managers had to ?sell? an employee?s promotion to the promotion committee, and that she was discouraged by two separate managers from pursuing a promotion. See Declaration of Sarah Brown (?Brown Decl.?) 11 7; Declaration of Muffy Barkocy (?Barkocy Decl.?) 4-6.3 3 In her moving papers at p. 4, Plaintiff cited to exhibits ?Turitter__00000906? and ?Twitter_800001443? as evidence of the ?gatekeeping? role of managers at Twitter. However, nothing in these exhibits support the proposition for which they are cited. - 5 Huang v. Twitter CGC-15-544813 Order Denying Plaintiff? 3 Motion for Class Certi?cation 2014, Twitter established a criteria for evaluating promotions based on two ?overarching? concepts: ?Impact? and ?How.? Drake Decl. 11 24. ?Impact? focuses on the employee?s contribution to Twitter?s projects, whereas ?How? focuses on the employee?s work quality and overall value to the team. Id Twitter provides some guidelines to help managers evaluate ?Impact? and ?How,? but ultimately delegates discretion to the managers so that they may assess ?Impact? and ?How? for their team. Id. I C. Anecdotal Evidence Regarding Disparate Impact. In support of her motion, Plaintiff submitted her declaration and ?ve other declarations from other current and former women SWES at Twitter. Plaintiff stated in her declaration that she was denied a promotion to the position of Senior SWE, while seven male employees were promoted to that position. Huang Decl. 1111 11, 13. She also stated that she felt Twitter?s failure to promote her was an example of ?a more systemic bias against women that is inherent in Twitter?s promotion system speci?cally, and its culture generally.? Id. 11 14. Ms. Jane Roe?s declaration stated she was hired as a SWE II even though she had over 12 years of experience as a software developer, that other employees in that position had signi?cantly less experience, and that women SWEs were outnumbered by men SWEs. Declaration of Jane Roe (?Roe Decl.?) 2, 4. Ms. Sarah Brown stated that, while she did not experience any behavior that was overtly discriminatory, she still felt that Twitter had a male-dominated environment. Brown Decl. 11 10. Ms. Muffy Barkocy stated that the work environment or culture in Twitter appeared to be a culture of ?young college-aged men,? sometimes referred to at Twitter as ?brogrammer? culture, and that such culture adversely impacted women. Barkocy Decl. 1] 7. Similarly, Ms. Jane Doe stated in her declaration that she believed women were treated differently than men at Twitter. Declaration of Jane Doe (?Doe Decl.?) 1] 7. Finally, Ms. Penny Loftesness, who does not appear to be a class member because she left Twitter in February 2013, described a ?bro? culture, and stated that the promotion process was arbitrary and controlled by a few male ?gatekeepers.? Declaration of Penny Loftesness 1H 2, 12. Twitter submitted nine declarations from current and former putative class member SWEs and SWE managers who stated that they have not been disadvantaged by gender, that the higher up the technical ladder, the more dif?cult it is to achieve promotions, that Twitter is committed to promoting gender diversity and inclusion, and that they have not been disadvantaged by Twitter?s promotion process. See Declarations of Pu, Svetlana Nelson, Jan Chong, Anna Slukina, Jillian Crossley, Jenny -6- Huang v. Twitter CGC-15-544813 Order Denying Plaintiff?s Motion for Class Certi?cation Hylbert, Yao Yue Tzvetelina Txeneva, and Kathleen Vignos. D. Expert Evidence. Plaintiff presented the expert testimony of Dr. C. Daniel Vencill. Dr. Vencill concludes that women SWEs at Twitter are promoted less ?equently than men, that the time spent in each position before promotion is much greater for women, and that promotions become more infrequent as employees move to more senior positions on the Technical Ladder. See generally Declaration of Dr. Daniel Vencill ISO Plaintiffs Motion for Class Certi?cation (?Vencill Decl.?) and Declaration of Dr. C. Daniel Vencill ISO Plaintiff?s Reply Brief (?Vencill Supp. Twitter presented the expert testimony of Dr. Paul F. White. Dr. White vigorously disputes Dr. K. Vencill?s methodology and conclusions. Dr. White analyzed the data and concluded that women are promoted at a rate that is not statistically signi?cantly lower than that of men and that women do not take statistically signi?cantly longer to be promoted from one position on the Technical Ladder to the next during the relevant time period. He notes that Dr. Vencill?s ?Glass Ceiling Risk Index? is not an actual - index number, lacks supporting data, and does not support for his speci?c conclusions. See generally Declaration of Dr. Paul F. White ISO Twitter?s Opposition (?White Ex. A (?White Analysis?). E. Evidence Speci?c to Plaintiff Tina Huang. Plaintiff began working as a Software Engineer at Twitter in October 2009. Huang Decl. 11 2. Plaintiff was promoted several times up the SWE Technical Ladder, eventually being promoted to the position of Staff SWE in 2012. Id. 11 5. Plaintiff teSti?ed during her deposition that her managers supported her promotions. See Declaration of M. Lawson ISO Defendant Twitter, Inc.?s Opposition to Plaintiff?s Motion for Class Certi?cation (?Lawson Ex. (?Huang Depo.?) at 18:5?19:l4. In winter 2013, Plaintiff worked with her manager, James Waldrop, to put together a promotion packet for the position of Senior Staff SWE. Huang Decl. 8; see also Huang Depo. at 217:6-17. Plaintiff stated that she received excellent performance reviews and that she did not have any disciplinary issues or receive any criticisms. Huang Decl. 11 11. The promotion committee, consisting of 10 male 4 Twitter seeks to exclude all of Dr. Vencill?s expert testimony and both of his reports on multiple grounds. See Twitter?s Objections to Evidence (?Twitter?s Obj Twitter?s objections to the entirety of Dr. Vencill?s reports are overruled. Rulings on Twitter?s Speci?c objections are set forth in the Court?s Orders re Twitter?s Objection to Evidence ?led this same day. -7- Huang v. Twitter CGC-15-544813 Order Denying Plaintiff?s Motion for Class Certi?cation ?senior SWEs and one female senior engineer, ultimately decided not to promote Plaintiff, as well as four other male SWEs, to the position of Senior Staff SWE. Drake Decl. 31?32. Plaintiff stated that she was not given any explanation as to why she was denied the promotion. Huang Decl. 11 11. Plaintiff later discovered that the same promotion committee decided to promote seven male SWEs to the position of Senior Staff Engineer. 161.11 13., Alter Plaintiff requested a formal investigation of her promotion case, she was placed on an ?inde?nite leave? pending the investigation. Id. 11 15. After three months, and without receiving any response from Twitter with respect to the investigation, Plaintiff voluntarily resigned in June 2014. Id. LEGAL STANDARD 7 Under section 382 of the Code of Civil Procedure, the party seeking class certi?cation bears the burden of establishing ?the existence of an ascertainable and suf?ciently numerous class, a well-de?ned community of interest, and substantial bene?ts from certi?cation that render proceeding as a class superior to the alternatives.? Brinker Restaurant Corp. v. Super. Ct. (2012) 53 Cal.4th 1004, 1021. The party seeking certi?cation must present substantial evidence showing that the requirements of section 382 have been met. Drug Stores, Inc. v. Super. Ct. (2004) 34 Cal.4th 319, 328-29. While courts ordinarily do not reach the merits of an action when considering a certi?cation motion, courts do examine the elements of the alleged claims in the context of deciding whether the community of interest requirement has been met. Brinker, supra, 53 Cal.4th at 1023-24. ?[I]ssues affecting the merits of a case may be enmeshed with class action requirements, such as whether substantially similar questions are common to the class and predominate over individual questions or whether the claims or defenses of the representative plaintiffs are typical of class claims or defenses.? Linder v. hri?'y Oil Co. (2000) 23 Cal.4th 429, 443. IV. ANALYSIS Plaintiff?s primary complaint regarding Twitter?s promotion process is that managers act as ?gatekeepers? into the promotion process by deciding which of the SWEs they supervise are nominated and/or considered for promotions, and that Twitter in?uences managers? decisions through the use of the ?Impact? and ?How? criteria. However, of the six putative class member declarations submitted by Plaintiff, only Plaintiffs declaration, and the Brown and Barkocy declarations, addressed mangers? -3- Huang v. Twitter Order Denying Plaintiff?s Motion for Class Certi?cation r?I r?h I--alleged ?gatekeeping? function with respect to the promotion process, and in fact, Plaintiff stated that her own manager supported her promotion. Moreover, Dr. Vencill concluded that there is a gender disparity in promotions at Twitter, but testi?ed during deposition that he does not know the cause of such disparate impact. As such, the Court ?nds that Plaintiff failed to satisfy her burden of presenting substantial evidence to show that managers at Twitter acted as ?gatekeepers? with respect to the promotion process involving the putative class. However, even if the Court found that Plaintiffs evidence were suf?cient to establish the existence of such a policy or practice, the Court ?nds, based upon the rule set forth in Dukes I, that Plaintiff failed to meet her burden of establishing through substantial evidence: the existence of a well- defmed community of interest; that Plaintiff?s claims are typical of class members; and that certi?cation would produce substantial bene?ts that would render proceeding with this case as a class action either manageable or superior to the alternative. Accordingly, the Court must deny Plaintiffs motion for class certi?cation. A. The Proposed Class is Ascertainable and Numerous. Whether a class is ascertainable is determined by examining the class de?nition, (2) the size of the class, and (3) the means available for identifying class members.? Evans v. Lasco Bathware, Inc. (2009) 178 Cal.App.4th 1417, 1422 (quotations omitted). ?The purpose of the ascertainability requirement is to ensure it is possible to give adequate notice to class members and to determine after the litigation has concluded who is barred from relitigating.? Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 918-19 (quotations omitted). Moreover, ?[t]he requirement of Code of Civil Procedure section 382 that there be ?many? parties to a class action suit is inde?nite and has been construed liberally. . . . . No set number is required as a matter of law for the maintenance of a class action.? Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 934. There are 135 women software engineers who have been identi?ed as members of the putative class. Lohr Decl. ll 7. The Court ?nds that the class is easily ascertainable and suf?ciently numerous. B. Plaintiff Failed to Demonstrate a Well-Defined Community of Interest. The ?community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class -9- Huang v. Twitter Order Denying Plaintiff's Motion for Class Certi?cation representatives who can adequately represent the class.? 'Brinker, supra, 53 Cal.4th at 1021. For the requisite community of interest to exist, ?[q]uestions of law or fact common to the class [must] predominate over the questions affecting the individual members.? Lockheed Martin Corp. v. Super. Ct. (2003) 29 Cal.4th 1096, 1104. Moreover, Plaintiff bears the burden of establishing through substantial evidence that her ?common contention . . . [is] of such a nature that it is capable of classwide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. . . . What matters to class certi?cation . . . is not the raising of common questions even in droves but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.? Dukes I, supra, 564 US. at 350 (internal citations and quotations omitted). In Dukes I, plaintiffs sought to certify a nationwide class of 1.5 million current and former Wal-Mart female employees, alleging that Wal-Mart?s local managers exercise their discretion over pay and promotions disproportionately in favor of men, resulting in disparate impact on women. 564 US. at 342. When selecting candidates for promotion, Wal-?Mart managers were required to assess for certain objective criteria, such as ?an above?average performance rating, at least one year?s tenure in the applicant?s current position, and a willingness to re10cate.? Id. at 343. Other than those requirements, Wal?Mart allowed its managers to exercise their own discretion. Id. Plaintiffs in that case argued that the commonality requirement was met because Wal-Mart?s managers exercised ?discretionary decisionmaking? in a manner that was common to all Wal-Mart female employees. Id. at 345, 355. The US. Supreme Court stated that a ??policy? of allowing discretion . . is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.? Id. at 355 (emphasis in original). The Court further stated that, other than the mere fact of delegated discretion, plaintiffs failed to identify a ?speci?c employment practice? that applies uniformly throughout the class, and that simply showing that Wal-Mart?s policy of discretion has produced an overall sex?based disparity does not suf?ce. Id. at 357. Dukes I thus stands for the rule that, in a disparate impact case based on a company?s policy of delegated discretion, a plaintiff seeking to certify a class must identify a ?common mode of exercising discretion? that would tie class members? claims together. Id. at 356, 358 (internal quotation marks omitted). -10- Huang v. Twitter Order Denying Plaintiffs Motion for Class Certi?cation ooqmm-IsmNHOKDooucxm-thr?no In the instant case, Plaintiff challenges two components of Twitter?s promotion system: (1) Twitter?s managers? ?gatekeeping? function with respect to the promotion process; and (2) the managers? use of the ?Impact? and ?How? criteria in assessing an employee?s candidacy for promotion. Mtn. at 18. Speci?cally, Plaintiff argues that in order for SWES in the Technical Ladder to be nominated and/or considered for promotions, their managers must support their promotion, and that managers are required to use the ?Impact? and ?How? criteria to assess whether an employee should be nominated and/or considered for a promotion. Reply at 4. Like the delegated discretion policy that was challenged in Dukes I, Plaintiff?s ?gatekeeping? claim challenges Twitter?s policy of giving managers discretion over promotions. Here, Plaintiff claims that Twitter?s policy of requiring managers to use the ?Impact? and ?How? criteria constitutes a ?speci?c employment practice? or a ?common mode of exercising discretion? that would satisfy the commonality requirement. But the evidence demonstrates that the ?Impact? and ?How? criteria is a vague and highly-subjective one, the application of which depends on a multitude of factors. Indeed, Kathleen Vignos, a Senior Engineering Manager at Twitter, indicated that - ?demonstrating impact is different for every team.? Declaration of Kathleen Vignos ISO Defendant Twitter, Inc.?s Opposition to Plaintiff Motion for Class Certi?cation (?Vignos Decl.?) 11 7. To demonstrate ?Impact? for her team, Ms. Vignos ?created a list of examples of the types of projects that [she] believe[s] demonstrate[s] impact.? Id. Ultimately, the ?Impact? and ?How? criteria are simply subjective guidelines for managers? exercise of their discretion that do not rise to the level of a ?common mode of discretion.? See Dukes v. Wal-Mart Stores, Inc. (N .D. Cal. 2013) 964 .Supp.2d 1115, 1126 (Dukes I1) (court denied certi?cation following remand, ?nding that the ?common subjective criteria? used by managers was nothing more than ?repackaged delegated discretion?). The facts in this case are distinguishable from those in Ellis v. Costco Wholesale Corp. (N .D. Cal. 2012) 285 F.R.D. 492, where the court certi?ed a class of current and former employees alleging gender discrimination in the employer?s promotion practices in a disparate treatment and disparate impact case. In Ellis, plaintiffs presented evidence showing that Costco had a culture that reinforced gender stereotypes, which adversely affeeted women?s opportunities for promotion. Id. at 52-21. Plaintiffs also presented substantial evidence of upper management involvement in the promotion process, including with respect to which employees are considered for promotions. Id. at 513 (promotable lists of candidates -11- Huang v. Twitter CGC-15-544813 Order Denying Plaintiff?s Motion for Class Certi?cation KC 00 \1 ON 43were maintained at the regional level). Additionally, Costco imposed ?consistent substantive criteria? for promotions into the General Manager (GM) and Assistant General Manager (AGM) positions that was uniformly applied throughout the-class, such as, the requirement that candidates for GM must be AGMs and candidates for AGM must be Senior Staff employees, candidates for AGMs must have merchandising experience in the Merchandise Manager position, and should have experience in most of the Senior Staff positions. Id. at 514. Based on these and other evidence, the court in Ellis found that plaintiffs . demonstrated ?a pervasive companywide culture that, along with the common policies and practices, guide Costco?s managers? discretion in making promotion decisions?. Id. at 511. In contrast to Ellis, Plaintiff?s evidence in this case highlights the ?gatekeeping? role of individual managers for a large number of teams within Twitter?s SVVE Technical Ladder as opposed to upper management?s role. More importantly, Twitter?s ?Impact? and ?How? criteria, in contrast to Costco?s criteria as described in Ellis, is vague and subjective, and does not lend itself to a uniform system of assessing candidates for promotions. Accordingly, unlike the plaintiffs in Ellis, Plaintiff in this case failed to present substantial evidence of a common policyor practice that guided Twitter managers? decisions with respect to promotions. As noted above, Plaintiff submitted a number of declarations ?om putative class members describing a ?brogrammer? culture at Twitter, and Plaintiff?s expert, Dr. Vencill concluded that fewer women SWES are promoted to the upper rungs of the Technical Ladder compared to their male counterparts. However, because Plaintiff failed to identify a ?specific employment practice? or a ?common mode of exercising discretion,? any evidence showing the existence of a disparate impact on women SWEs at Twitter is insuf?cient to establish that common questions of fact or law predominate in this case. See Dukes I, supra, 5 64 US. at 357 (merely showing that a policy of delegated discretion has produced an overall sex-based disparity does not suf?ce); see also Ellis, supra, 285 F.R.D. at 531-33 (requiring plaintiffs to identify a ?speci?c companywide employment practice? responsible for the disparate impact). C. Plaintiff Failed to Establish that Her Claims are Typical of the Class. Apart from failing to establish that common questions of fact or law predominate, Plaintiff further failed to establish that her claims are typical of the entire class. The typicality of a class representative?s - claims is determined by examining whether the absent class members have the same or similar injury, -12- Huang v. Twitter CGC-15-544813 Order Denying Plaintiff?s Motion for Class Certi?cation whether the action is based on conduct which is unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. Seastrom v. Neways, Inc. (2007) 149 Cal.App.4th 1496, 1502. Plaintiff argues that her claims are typical of the class because she was also a SWE in the Technical Ladder, subject to the same ?Impact? and ?How? criteria, and was similarly denied a promotion as a result. Reply at 12-13. However, notwithstanding Plaintiff?s claim that managers at Twitter prevented and or discouraged women from receiving promotions, Plaintiff testi?ed during deposition that her managers initiated promotion cases on her behalf and supported her promotions. Huang Depo. at 19:3-14, 217:6-17. Thus, unlike the class she seeks to represent, Plaintiff promotions were not hindered by her manager?s ?gatekeeping.? The fact that Plaintiff?s experience differs ?om those of class members who allege their promotions were thwarted by their managers suggests that her claims are not typical of the rest of the class. D. Plaintiff Failed to Demonstrate that the Class Action is the Superior Method for Resolving the Case. In assessing superiority, a court generally considers the following: The interest of each member in controlling his or her own case personally; (2) The dif?culties, if any,vthat are likely to be encountered in managing a class action; (3) The nature and extent of any litigation by individual class members already in progress involving the same controversy; [and] (4) The desirability of consolidating all claims in a single action before a single court.? Basurco v. 21st Century Insurance Co. (2003) 108 Cal.App.4th 110, 12 1 (citations and quotations omitted). Because Plaintiff failed to identify a speci?c employment practice that uniformly applied to the class, it follows that Plaintiff also failed to demonstrate how class members? claims can be fairly and ef?ciently adjudicated in one proceeding. Indeed, numerous individual factual inquiries would have to be undertaken regarding, for example, whether or not individual managers acted as ?gatekeepers? into the promotion process for the employees they supervise, how they applied the ?Impact? and ?How? criteria, if at all, etc. Accordingly, the Court ?nds that Plaintiff has not met her burden of showing that a class action is a superior device for resolving this controversy. V. CONCLUSION Based upon the state of the evidence presented to the Court and the holding in Dukes I, Plaintiff" -13- Huang v. Twitter Order Denying Plaintiff?s Motion for Class Certi?cation Motion for Class Certi?cation is denied. The Court will hold a Case Management Conference on July 25, 2018? at 9:30 am. to discuss further proceedings in this action and to establish pretrial deadlines and a trial date for Plaintiff individual claims, including the second and third causes of action for retaliation and wrong?il termination. A joint case management statement must be ?led, and two c0pies delivered to Department 305, no later than three court days prior to the conference. IT IS SO ORDERED. Dated: July 3, 2018 -14- Huang v. Twitter CGC-15-544813 Order Denying Plaintist Motion for Class Certi?cation TINA HUANG, for herself, and all others similarly situated, Plaintiff, vs. TWITTER, INC. and DOES 1-10, Defendants. Superior Court of California County of San Francisco Case Number: CERTIFICATE OF ELECTRONIC SERVICE (CCP 1010.6(6) CRC I, T. Michael Yuen, Clerk of the Superior Court of the County of San Francisco, certify that I am not a party to the within action. On July 3, 2018, I electronically served the ORDER DENYING PLAIN MOTION FOR CLASS CERTIFICATION via File&ServeXpress? on the recipients designated on the Transaction Receipt located on the File&ServeXpress? website. Dated: July 3, 2018 T. Michael Yuen, Clerk By: Sean Kane, Deputy Clerk CERTIFICATE OF ELECTRONIC SERVICE