United States District Court, D. Minnesota
Ellen S. Ewald, Plaintiff,
Royal Norwegian Embassy, Defendant
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Thomas E. Marshall, Sheila A. Engelmeier, and Susanne J. Fischer, Engelmeier & Umanah, P.A., Minneapolis, for Plaintiff.
Daniel G. Wilczek, Joel P. Schroeder, and Sean Somermeyer, Faegre Baker Daniels LLP, Minneapolis, for Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT
SUSAN RICHARD NELSON, United States District Judge.
This case arises out of a dispute concerning Plaintiff Ellen S. Ewald's employment with Defendant Royal Norwegian Embassy (the " Embassy" ). Plaintiff alleges pay discrimination, claiming that the Embassy violated the Equal Pay Act (the " EPA" ), 29 U.S.C. § 206(d)(1), and the Minnesota Human Rights Act (" MHRA" ), Minn. Stat. § 363A.08, Subd. 2. (Am. Compl. Counts III and VI [Doc. No. 104].) She also alleges that the Embassy violated Minn. Stat. § 181.64 by fraudulently inducing her to enter employment. (Am. Compl. Count II [Doc. No. 104].)
As an initial matter, the Court notes that the EPA is a strict liability statute, under which an employer's discriminatory intent, or lack of such intent, is irrelevant. Bauer v. Curators of the Univ. of Mo., 680 F.3d 1043, 1045 (8th Cir. 2012). The relevant inquiry under the law is whether the jobs in question are substantially equal that is, whether they require equal skill, effort, and responsibility. 29 U.S.C. § 206(d)(1); Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002).
This matter was tried before the undersigned Judge of the District Court on April 21-24, 2014; April 28-May 2, 2014; May 13, 2014; and May 16, 2014. Subsequently, on July 31, 2014, the parties submitted Proposed Findings of Fact and Conclusions of Law [Doc. Nos. 327 & 328]. Based on the evidence presented at trial and all of the files, records, and proceedings in this matter, the Court makes the following Findings of Fact and Conclusions of Law, and enters the following Order for Judgment.
FINDINGS OF FACT
1. Plaintiff Ellen S. Ewald is a female United States citizen who resided in Norway for more than twenty years. (Ewald 57-83, 141.) She relocated to the Twin
Cities when she accepted a job working for the Embassy, and continued to live in Minneapolis, Minnesota, through the time of trial. (Id.)
2. At all times relevant to this matter, the Embassy had a presence in the State of Minnesota at the Honorary Norwegian Consulate, 901 Marquette Avenue South, Suite 2750, Minneapolis, MN 55402. The Embassy has consented to the jurisdiction of this Court pursuant to Plaintiff's Employment Agreement (the " Agreement" ) (J-12-0001) and Defendant's representations to this Court. (Tr. of 11/26/12 Hearing at 16-18 [Doc. No. 330].) According to the Agreement, Plaintiff's employment relationship is " governed by the laws [where] the Employee is employed." (J-12-0001.)
Background and Framework for the " New Model Consulate"
3. In 2007, Norway announced that it was closing its Career Consulate in Minneapolis, Minnesota, largely for budgetary reasons. (Strømmen 829; Vibe Dep. 37.) Norway's career consulates are staffed with diplomatic personnel from the country's diplomatic corps. (Strømmen 827.) In contrast, Norway's honorary consulates in the United States are led by American citizens. (Id.) Prior to announcing the closure of its Career Consulate, Norway had maintained an official diplomatic presence in Minnesota for over a century. (Mueller 1119; see also Gandrud 496;
4. Announcement of the closing was met with substantial disappointment and opposition in the Midwest and Norway. (Mondale 604-05;
Strømmen 830.) Those opposed to the closing believed that closing the Career Consulate would diminish the longstanding ties between Norway and the Midwest. (Strømmen 829-31.)
5. Several people within the Norwegian Ministry of Foreign Affairs (" MFA" ) began crafting an alternative solution that would allow for Norway to maintain a strong, sustainable foothold in the Midwest. (Mykletun 1575-83; Hansen 1079.) Dr. Jostein Mykletun, then serving in the MFA as Deputy Director General in the areas of trade, innovation, business promotion, and research, was particularly involved in this process. (Mykletun 1563-64.)
6. Mykletun, along with persons in the Norwegian Ministry of Education and Research, had been previously involved in developing a 2005 document entitled " Strategy for Norway's Scientific and Technological Cooperation with North America" (the " Strategy" ). (Mykletun 1581; P161.)
7. The purpose of the Strategy was to strengthen Norway's scientific and technological cooperation with the United States and Canada. (P161-0005.) In so doing, the Norwegian government hoped to raise Norway's aggregate spending on research and development (" R& D" ) and to improve the quality of Norwegian research. (Id.) The authors of the Strategy identified three primary objectives:
1. The Strategy will contribute to the long-term escalation of R& D collaboration with the United States and Canada.
A. More Norwegian researchers and research recruits will spend time in the U.S. or Canada, and more researchers and research recruits from these countries will have comparable stays in Norway.
B. Norway's trans-Atlantic collaborations on R& D projects will expand, bilaterally or through projects involving parties from several countries.
C. Norwegian research and Norwegian business and industry will receive more and faster access to research results, knowledge, and expertise from the U.S. and Canada.
2. The Strategy will help enhance the quality of Norwegian research.
A. More collaboration with North America will stimulate the revitalization of Norwegian research, improving the quality and efficiency of researcher training.
B. Priority will be given to fields of research and groups that maintain high quality standards.
3. More R& D collaboration with the United States and Canada will contribute to more knowledge-based economic development in Norway.
A. More partnerships will develop for the purpose of innovation and R& D-based economic development.
B. More people from Norwegian research, industry, the authorities, and others will become familiarized with relevant groups for research and economic development in North America, with a view to augmenting entrepreneurship in Norway.
(Id. at P161-0006.)
8. Because of Mykletun's previous involvement in developing the Strategy, he was invited to participate in the effort to chart an alternative course for Norway's Consulate in Minnesota. (Mykletun 1576.) Mykletun, who had attended Macalester College in St. Paul many years earlier, had close connections with Minnesota as well as with his employer, the MFA. (Mueller 1124.) Jeffrey Mueller, then the President of the Norwegian-American Chamber of Commerce (" NACC" ) in Minneapolis, credited Mykletun with shepherding the Norwegian-American community in the Midwest through the process of understanding and supporting an alternative Consulate. (Mueller 1126-27.)
9. Mykletun met with members of the Norwegian-American community who were opposed to the closing of the Career Consulate and discussed an alternative approach to the Consulate that would maintain Norway's significant presence in the Midwest. (Mueller 1127.) In terms of funding, Mykletun suggested that collaborative funding among different Norwegian government ministries would demonstrate widespread " buy-in," and would show that the Norwegian government remained committed to the Midwest, even though it had decided to close the Career Consulate. (Mueller 1127-28.)
10. As a result of this effort, a " new model" for an honorary consulate was developed for Minneapolis (the " Honorary Consulate" or the " New Model Consulate" ). (Mondale 606-07;
Strømmen 831-35; Gandrud 969-70.) The New Model Consulate was designed to build upon and strengthen the relationship between the Midwest and Norway through focused efforts to increase collaboration in two key strategic areas: (1) business and innovation; and (2) education and research. (Gandrud 503, 1006; Mondale 605-06; Mykletun 1576-79, 1581-83.) The New Model Consulate was an outgrowth of the Strategy, as well as an outgrowth of a bilateral agreement on research and technology between Norway and the United States. (Ewald at 86, 90; P-161; see also Mykletun 1617-18.)
11. Two expert positions in the New Model Consulate were developed to drive collaboration in these two strategic areas: (1) an Innovation and Business Development Officer (the " Innovation and Business Position" ); and (2) a Higher Education and Research Officer (the " Higher Education and Research Position" ). (Mykletun 1590-91.)
12. Mykletun discussed his vision of the New Model Consulate with members of the Norwegian-American business community in Minnesota, including Lois Quam and Marius Hansen. (Hansen 1078, 1102.) Quam and Hansen were colleagues who were actively involved in the Norwegian-American
community. (Hansen 1076.) Hansen also had served as a board member of the NACC. (Hansen 1077.) In the course of their meetings and conversations about the New Model Consulate, Mykletun indicated that the two expert positions would collaborate in certain areas. (Hansen 1081.) Hansen explained that the two positions represented " intersecting circles" of education and business, which both included the commercialization of research. (Id.) Based on Hansen's recollection of these conversations with Mykletun, he understood that the two positions were parallel and equal. (Id.) Hansen held this belief because the intention behind the two positions was the same to foster relationships between the Midwest and Norway. (Hansen 1081, 1101.) At trial, Mykletun testified that the two positions were equally important. (Mykletun 1589.) The Higher Education and Research Officer was tasked with fostering relationships between universities in the two regions, while the Innovation and Business Development Officer was tasked with fostering relationships between businesses in the two regions. (Id.)
13. Norway's then-Minister of Foreign Affairs, Jonas Gahr Stø re, announced the concept of the New Model Consulate in a March 2008 speech at the Humphrey Institute in Minneapolis. (Mykletun 1576; Nash 533.) During Stø re's speech, he addressed many of the concerns of those opposed to the decision to close the Career Consulate. (Nash 534.) The Foreign Minister emphasized that the New Model Consulate would provide potential collaborations between business and education, in Norway and Minnesota. (Nash 534.) Based on Stø re's remarks and the remarks of other high-level Norwegian government ministers who visited Minnesota in the spring of 2008, it was understood among members of the Norwegian-American community that encouraging researchbased innovation would be one of the most important tasks of the New Model Consulate. (Mueller 1114-15.)
14. Because of budget constraints, the MFA sought the funds needed to finance the two expert positions from other institutions in Norway. (Strømmen 834-35; Mykletun 1576-77, 1583, 1590-91.) The MFA solicited various Norwegian institutions and government agencies with existing or potential interests in the Midwest to make an investment in funding the positions. (Mykletun 1583-84.) The MFA explained that the positions could support the goals of the respective institutions with little financial risk. (Id.)
15. Ultimately, six Norwegian institutions (the " Stakeholders" ) participated in the funding of the expert positions at the New Model Consulate, each agreeing to provide 250,000 Norwegian Kroner (" NOK" ) per year (a total of 1.5 Million NOK per year). (Berg 1239; Mykletun 1586-87, 1599; Johne Dep. 53-54.) The Stakeholders were: (1) the Ministry of Education and Research; (2) the Research Council of Norway; (3) the Norwegian Association of Higher Education Institutions; (4) the Ministry of Agriculture; (5) SINTEF, an independent, commercial research and development institute; and (6) Innovation Norway, an institution that provides consulting, market analysis, and risk-mitigation services to small- and medium-sized businesses in Norway. (J-6-0001; Mykletun 1586-87; Finborud Dep. 18-20; Johne Dep. 53-54; Ewald 88; Berg 1234-37.) Innovation Norway, which has offices throughout the world, evolved out of the combined efforts of several Norwegian government ministries to create private-public partnerships aimed at, among other things, assisting Norwegian-based businesses to expand abroad. (Nash 532.)
16. The Stakeholders also were charged with (1) guiding the two experts by way of an advisory committee, or
" Steering Committee" (Berg 1245, 1304-1305; P-11-0001); and (2) " inform[ing] [the two expert officers] about their priorities." (Finborud Dep. 26-27.) Each Stakeholder appointed a representative to serve on the Steering Committee. (Berg 1306-07; P-11-0001; Finborud Dep. 16-20, 26-27.) Liv Mø rch Finborud, a senior MFA advisor, was appointed Chair of the Steering Committee. (Berg 1251-52; Finborud Dep. 15-16.)
17. The New Model Consulate project required Stakeholders to deposit their financial contributions with the Embassy in Washington, D.C. (Strømmen 836.) The Embassy was tasked with administering the Stakeholders' financial contributions because the persons hired for the two expert positions would be the Embassy's employees. (Id.) Although the interests of a specific Stakeholder could be more closely aligned with one expert position, the Stakeholders contributed to the project as a whole. (Berg 1245, 1320-21; J-23-0002.) This funding covered the salaries, travel expenses, and benefits for the two expert positions. (Finborud Dep. 21-22.) Although the Stakeholders' role with respect to the expert officers was important, Norway's Ambassador to the United States at the time, Wegger
Strømmen, had ultimate responsibility for employment decisions regarding the two officers. (Strømmen 839.)
18. Because the New Model Consulate presented a novel and untested structure and concept, the Stakeholders' financial commitment was limited to an initial three-year trial term, with the possibility of either ending or extending the terms of the expert positions after three years. (Strømmen 841; Berg 1245-46; P-11-0001; Finborud Dep. 20-21; Ewald 313, 485.) Funding beyond the trial term depended upon whether the Stakeholders believed that the benefits from the work of the expert officers justified further investment. (Berg 1366-67.)
19. In addition to the two expert positions, the New Model Consulate required the appointment of an Honorary Consul General, the selection of whom was critically important. (Strømmen 831.) Following the announcement of the selection of Vice President Walter Mondale as the Honorary Consul General, opposition surrounding the decision to convert the Career Consulate to an Honorary Consulate subsided. (Id.)
20. In addition to Honorary Consul General Mondale, Gary Gandrud was appointed to serve as Honorary Consul for the Consulate beginning in August 2008. (Gandrud 495, 500.) In his role as Honorary Consul General, Vice President Mondale functioned as the Consulate's public face, while Gandrud handled the operational details. (Mondale 603.) When Vice President Mondale later resigned as Honorary Consul General, effective January 2010, Gandrud became Honorary Consul General. (Gandrud 964-65.) Both Vice President Mondale and Gandrud were volunteers who were not paid for their work at the Honorary Consulate. (Gandrud 780, 965-66.)
21. Ambassador Strømmen testified that his role in the New Model Consulate involved: (1) raising money for the New Model Consulate's budget; (2) supporting the Honorary Consul General; and (3) keeping the Stakeholders happy. (Strømmen 835, 841, 843.) The Embassy's Chief Deputy at the time, Aud Kolberg, asked Embassy staff Elin Rognlie, then the Minister Counselor for Economic Affairs, and Dr. Berit Johne, Counselor for Science at the Embassy, to assist with launching the New Model Consulate. (Rognlie 1398.)
Job Postings and Hiring Committee
22. In consultation with the Stakeholders, the MFA developed job descriptions, which described the goals and expectations for the two expert positions. (J-2-0002-03; Gandrud 970; Mykletun 1583-88; Johne Dep. 33-36.) Mykletun's involvement in developing the New Model Consulate had also included working on " pitch documents" and " keywords" for the job postings, as well as funding for the positions. (Mykletun 1576-77; D-2-0017-30; D-4-0003.) On July 3, 2008, Mykletun posted the final announcement for the Minneapolis New Model Consulate's expert positions. (J-2-0001-04; Mykletun 1638.) The postings described both the Higher Education and Research Position and the Innovation and Business Position as full-time, officer-level positions. (J-2-0002-4.) Mykletun did not consider one expert position more important than the other. (Mykletun 1588-89.)
23. Each expert position required similar professional experience and qualifications, and required either the ability to speak Norwegian, or a willingness to acquire a basic understanding of the language. (J-2-0002-03.) The Higher Education and Research Position required an advanced university-level degree, and the Innovation and Business Position required a university-level degree. (Id.) Both expert positions had almost identical responsibilities and duties and shared the important objective of strengthening relations between the Midwest and Norway within higher education and research, on the one hand, and innovation and business development, on the other. (J-1-0001-03; J-1-0016.) Each job description specifically referenced the " key Norwegian institutions with which the expert would have regular contact" : for the Innovation and Business Position, Innovation Norway and SINTEF; for the Higher Education and Research Position, the Norwegian Association of Higher Education Institutions and the Ministry of Higher Education and Research. (Id. at 0002-03.) Perhaps most importantly, both positions had precisely the same goal to focus on opportunities for collaborative research and innovation, in order to develop commercial opportunities to justify the investment of the Stakeholders and ultimately benefit Norway. (P-161-0005; P-161-0042; Mykletun 1581-83; Nash 548, 552-53; Gandrud 580-81, 756; Mondale 609-10; D-24-0004; D-24-0009.)
24. Kermit Nash, a corporate attorney in Minneapolis with strong ties to the Norwegian-American business community and a member of the NACC, testified that the role of both positions was to serve the interests of Norwegians coming to the United Sates, and in order to best accomplish that, the two positions were " inextricably linked." (Nash 552.) During his testimony, Nash further discussed the inextricable link between business and education in Norway, in the context of innovation and collaboration. (Nash 551.) Nash was familiar with the Norwegian government's objectives concerning expansion into the United States business market through his attendance at NACC sponsored events in the Midwest and Norway, and through his professional experience in assisting Norwegian research-based innovation companies to enter the United States market. (Nash 529-31.) Nash's Norwegian corporate clients include academically wellcredentialed business people who develop various technologies for commercial use. (Nash 535.) Nash explained that unlike American entrepreneurs, Norwegian entrepreneurs are largely drawn from university settings. (Nash 534.) The Norwegian government supports the commercialization efforts of research-based innovation by funding early-stage companies either with equity, or through research grants. (Nash 535-36.) Nash testified that not surprisingly, research
and innovation business facilities in Norway house state-funded research projects. (Nash 534.)
25. With the exception of the specific focus area, Defendant's postings for the two expert positions outlined almost identical responsibilities, including but not limited to:
A. Working with a counterpart at the Embassy in Washington D.C., other key staff at the Consulate and relevant Stakeholders in Norway, towards the goals of advancing Norway's strategies for the respective focus area within the Upper Midwestern United States.
B. Developing contacts between Norwegian and United States partners.
C. Proactively engaging in targeted networking with relevant colleagues and partners in the respective focus area.
D. Facilitating and planning visits to the Midwest by involved and interested Norwegian partners, as well as facilitating workshops and seminars of common interest.
26. The job postings did not include information regarding salary. (J-1-0001-02, 14-15.) Rather, the postings stated that the expert positions were limited to a three-year term, with the possibility of renewal. (J-2-0002-03; Ewald 383.) The postings included the names of contacts for each position. (J-2-0002-03.) The Innovation and Business Position contacts were Rognlie and Gandrud. (J-2-0002.) The Higher Education and Research Position contacts were Johne and Gandrud. (J-2-0003.)
27. Hiring the right person for each expert position was believed to be critical to the success of the New Model Consulate. (Mondale 689, 693; Rognlie 1424.) The experts needed to have knowledge and expertise of their respective subject areas, be able to work full-time, and have enthusiasm for achieving the goals of the Stakeholders. (Mondale 617-18; Mykletun 1590-91.) The experts would also need to be able to work effectively without close supervision. (Gandrud 1003; Berg 1304.) Neither the Honorary Consul General nor the Honorary Consul were physically present at the Consulate full-time, nor were they experts in the fields of business and research-based innovation or higher education and research. (Gandrud 780, 965-66, 1003; Carleton 1052.)
28. A committee (the " Hiring Committee" ) was established to review applications, select finalists who would be interviewed, and make a hiring recommendation. (Rognlie 1400-01.) The members of the Hiring Committee were: (1) Johne, (2) Rognlie, (3) Vice President Mondale, and (4) Gandrud. (Mondale 609-10;
Strømmen 837-38; J-17-004.) Consistent with the job descriptions, Rognlie took the lead in screening the Innovation and Business Position applicants, and Johne took the lead in screening the Higher Education and Research Position applicants. (Rognlie 1399; Johne Dep. 56.)
29. In the process of planning the New Model Consulate, Gandrud contacted business people in Minnesota who were connected to the Norwegian-American community, including Marius Hansen and Lois Quam. (Hansen 1081-82.) Gandrud solicited input on the attributes and skills that the Hiring Committee should look for among the applicants, as well as the type of questions to ask the interviewees. (Id.) Hansen did not view the two expert positions as distinctly different. Rather, he testified that the Hiring Committee was looking for " the same kind of person [for both positions], a person who can deal with people at a senior level, who can reach out, make connections, and find areas of potential
collaboration here and in Norway." (Hansen 1082.) In the course of these conversations, Gandrud also indicated to Hansen that the two positions were equal and would pay approximately $70,000 each. (Hansen 1089.) Gandrud also told NACC President Mueller that the positions were significant and would pay $70,000, which piqued Mueller's interest in applying for the Innovation and Business Position. (Mueller 1137-38.)
30. NACC Member Kermit Nash also testified to his understanding that the two expert positions were equal an understanding that stemmed, in part, from his conversations with Gandrud, and, in part, from his conversations with applicants for the positions. (Nash 553-54.) Over coffee, Gandrud had described to Nash the similarities between the general roles of the two expert positions. (Nash 554.) And, applicants had informed Nash that they had applied for both expert positions because they understood that the jobs commanded equal pay and work in the Consulate. (Id.) Nash testified that everyone in the Norwegian-American community familiar with the New Model Consulate understood that the two positions were equal, and that the experts would provide the same number of hours of service. (Nash 555.) In fact, NACC President Mueller testified that the focus of both positions was on building stronger collaborations between organizations in Norway and the Midwest. (Mueller 1137.)
31. In connection with advertising any local employment positions at Norwegian foreign service stations, selecting employees, and setting the salaries, the MFA provided guidance in a document entitled " Guidance for Model Employment Contracts for Local Employees" (the " Guidance" ). (P-148.) " Local employees" are employees hired by the Norwegian Embassy within a host country, as distinguished from Norwegian employees and diplomatic staff who are sent from Norway to work abroad. (Strømmen 827.) Persons charged with the responsibility of hiring local employees, such as at the Minneapolis Consulate, were to follow the procedures set forth in the Guidance. (P-148-00022;
Strømmen 860-63.) Accordingly, the Hiring Committee was expected to follow the Guidance. (Strømmen 861.) Moreover, the Guidance explicitly provides that the top leaders in the MFA, including ambassadors, have the responsibility to ensure compliance with the Guidance. (P-148-0043.) Ambassador
Strømmen and Rognlie, as leaders in the MFA, agreed that they were obliged to ensure compliance with the Guidance. (Strømmen 887; Rognlie 1490,1492.)
32. The Guidance provides that when hiring new staff, every foreign service station is to conduct an evaluation that includes a comprehensive consideration of each applicant's education, work experience, and personal attributes in order to find the single applicant who is best qualified for the particular position. (P-148-0023.) The Guidance also requires that the selected individual be well qualified for the announced position, not just generally well qualified. (Id.) Ambassador
Strømmen agreed that the Embassy sought to hire the person who was the best fit for each expert position, not someone who had general qualifications for the job. (Strømmen 863.)
33. The Guidance also provides that foreign service stations, like the Honorary Consulate, are expected to be mindful of the Norwegian anti-discrimination laws during the application and hiring process. (P-148-0024-28;
34. As to the determination of salary, the Guidance provides as follows:
The salary shall be appropriate to the salary levels of the regional labor market for comparable positions. In order
to find comparable market salaries, the station must collect salary data from relevant sources. For example, international companies, recruitment companies, public salary standards, public statistics, industry statistics and job announcements. The station's established salary levels may be misleading for this purpose. In establishing salary where the individual resides for tax purposes, marital status and number of dependents shall not be taken into account.
(P-148-0033.) In addition, the Guidance provides that " local public salary regulations" are also a factor for determining an employee's salary. (P-148-0034.) Ambassador
Strømmen expected the Hiring Committee to follow these salary establishment guidelines. (Strømmen 867-68.)
35. Ambassador Strømmen also testified that he expected that members of the Hiring Committee were aware of and had considered Minnesota's pay equity law in the New Model Consulate hiring process. (Strømmen 878.) However, no evidence was presented demonstrating that the Hiring Committee had in fact considered Minnesota's pay equity law in setting the salaries for the expert positions.
36. As noted, the job postings did not include information regarding salary. (J-1-0001-02, 14-15.) Gandrud testified that prior to the interviews, he had received inquiries from several persons about the Innovation and Business Position. (Gandrud 575, 972-73.) Gandrud further stated that when these persons were told the salary range for the Innovation and Business Position, they indicated that it was too low. (Id.) Gandrud could not identify who had made such inquiries, referring to the callers as " Tom, Dick, and Harry." (Gandrud 575-76.) Rognlie, the other contact for the Innovation and Business Position, reported receiving no such calls. (Rognlie 1449-50.) The Court considers any references to comments regarding the Innovation and Business Position salary made by unidentified callers to be unreliable hearsay.
37. Before the jobs were posted, the Embassy's Counselor for Administrative and Consular Services, Jan Aage Larsen, asked, in a July 3, 2008 email, whether a proposed salary range of $60,000 to $70,000 would be acceptable for both expert positions. (P-6-0001-03; Gandrud 523, 971; Mondale 610; Rognlie 1449.) In a July 7, 2008 response email, Gandrud replied that that salary range would " be attractive" and would garner a " good representative response" for both positions because of the difficult state of the economy. (P-6-0001; Gandrud 523, 971-72.)
38. On July 9, 2008, Gandrud asked the Human Resources Manager at his law firm, Patricia Manalo, to briefly research the salary market for both expert positions. (Gandrud 576-77, 973; Manalo 252.) Gandrud told Manalo that he wanted an idea of the salary requirements for the two positions. (Manalo 255.) Gandrud gave Manalo copies of the job postings for the Higher Education and Research Position and the Innovation and Business Position. (Manalo at 255-56; Gandrud 582.) Manalo does not recall whether she reviewed any of the underlying information regarding the positions, including the Strategy or a bilateral agreement on research and technology between Norway and the United States. (Manalo 258-59.)
39. Gandrud did not provide Manalo with any information about the candidates or their then-current salaries, but Manalo concedes that if she were conducting this research as the official HR person in charge of hiring the two expert officers, she would have necessarily considered the candidates' (1) prior experience; (2) prior education; (3) and prior salaries and/or the
salary requirements, which she did not do. (Manalo 270-271, 274.)
40. Manalo used a website called salary.com to conduct her research. (J-3-0004-15; Manalo 276-77.) This website provides information regarding salaries for a large number of professions. (See Manalo 276-77; J-3.) Because Manalo did not find any listed positions that matched the job descriptions that Gandrud had provided, Manalo looked for positions that appeared most similar. (Manalo 268, 276-77.) Manalo had previously used this method when looking for salary information for positions that did not squarely match a position for which salary data was available. (Manalo 257, 276.) Manalo testified that she is aware that the pay levels for expert positions within the Minnesota Department of Commerce and the Minnesota Department of Education are publicly available. (Manalo 257, 259, 262, 279.) However, Manalo did not look for this information when she conducted the research in question. (Id.) She also did not review the salaries of other consulates' experts, or the salaries of other positions with foreign governments. (Id.) In total, Manalo spent approximately one hour on the salary search. (Manalo 256.)
41. Manalo provided Gandrud the results of her nominal research on July 10, 2008. (J-3-0001; Manalo 259.) Manalo gave Gandrud salary range information from a general query on the salary.com website for business and education positions entitled " Business Development Manager Jobs," " Business Development Director Jobs by U.S. Region," " Institutional Research Director Jobs by U.S. Region" and a " Researcher III-Academic" job. (J-3-0001-15; Manalo 276, 262-63.) This research incorrectly assumed that the two expert positions were for business people and academic researchers, respectively. Gandrud did not ask Manalo to search for salaries of similar employees in other embassies or consulates. (Gandrud 584.) Manalo believes that she printed out for Gandrud all of the documents that she reviewed in her search. (Manalo 259, 263.) Manalo conceded that the positions she pulled from salary.com were quite different from the job descriptions given to her by Gandrud. (Manalo 262, 267.) She also admitted that none of the search results were positions in the Midwest. (Id.) She considered her search to be an informal, " quick look at what [she] could find." (Manalo 272.) While Manalo did what she was asked to do, this scattershot research provided no insight into the appropriate market salaries for the two expert positions.
42. Manalo concluded that the salary market range was from $70,000 to $79,000 for the Higher Education and Research Position and from $93,000 to $118,000 for the Innovation and Business Position. (J-3-0001; Gandrud 577-78.) Manalo testified that her research was objective and not influenced by the gender of the applicants. (Manalo 270, 276.) In fact, she testified that when she conducted her research, she did not know who had applied for the positions. (Id.)
43. In Manalo's trial testimony, after comparing the actual job postings for the expert positions against the salary.com positions, Manalo conceded that they were quite different. (Manalo 260-67.) The Higher Education and Research Position did not actually perform research; it brought research institutions and businesses together. (Manalo 264-266; 273; J-2.) Likewise, the Innovation and Business Position was not designed to generate business for a corporate entity; instead, it also brought businesses together. (Manalo 259-62; Davidson 2015-17.) Manalo admitted that if she were involved in hiring the two individuals, she would have conducted
more research before settling on a salary. (Manalo 269-270.)
44. Gandrud also admitted that the Consular expert positions were quite different from the positions that Manalo had found on salary.com. (Gandrud 578.) Nonetheless, Gandrud believed that the information gleaned from Manalo's one-hour search " was as close as he needed." (Id.) Gandrud did not ever look to the most relevant market research what other embassies or other state governments or federal entities were paying similar employees in the Twin Cities when setting the salaries for the Consular positions. (Gandrud 584.)
45. Gandrud did not share the information that he received from Manalo with the Stakeholders, the Hiring Committee, or anyone else at the Embassy. (Gandrud 584;
Strømmen 902; Mondale 618; Rognlie 1481.) Thus, while Vice President Mondale was aware that some type of market survey or analysis had been performed, he did not see it at any point during the hiring process, or during his tenure as the Honorary Consul General. (Mondale 618, 649-50.) Similarly, Ambassador
Strømmen had no knowledge of what was done to find comparable market salaries and had no knowledge of the standards or statistics that were relied upon to set the salaries for the two Consular experts. (Strømmen 868-69.)
46. On July 3, 2008, Mykletun forwarded the job descriptions for both expert positions to his colleagues, including Ellen Ewald, for distribution to their professional networks. (J-2-0001; Ewald 76, 78, 83-84.) Ewald and Mykletun had been friends since 2002. (Mykletun 1566-67.) Mykletun was not soliciting Ewald to apply and was not otherwise involved in recruiting, screening, or hiring for the positions. (Mykletun 1566-67, 1593-95.)
47. Ellen Ewald is a Minnesota native who holds a Masters Degree in Political Science from the Massachusetts Institute of Technology, and a degree in Comparative Politics (" Hovedfag" ) from the University of Bergen in Norway, as well as a Bachelor's Degree in International Relations & Scandinavian Studies and Foreign Studies from the University of Minnesota (graduating summa cum laude ). (J-4-0003.) Ewald is fluent in the Norwegian language, both spoken and written. (J-4-0004.) She has extensive professional experience in both education and business, and has held board positions in the United States and in Norway. (J-4-0003-04; Ewald 62-83.)
48. Ewald has received awards for her achievements, including recognition as one of " Norway's Top 10 Most Successful International Women" in 2004. (J-4-0003; Ewald 79-80.)
49. Ewald was the founder and former president of the MIT Club of Norway, a business networking club comprised of business leaders and alumni of MIT with a specific interest in the area of government and industry collaboration. (Ewald 70-72.) She was also a co-founder, along with Mykletun and Finn Kristian Aamodt, of the University of Minnesota Alumni Club of Norway. (Ewald 81-83.) Her involvement with the MIT Club and the University of Minnesota Alumni Club expanded Ewald's network in Norway and in the United States. (Ewald 83-84.)
50. Ewald had a successful private business career in Norway spanning more than a decade. (J-4-0004; Ewald 67, 73.) She worked as an executive for various corporations, and much of that experience was in the area of business evaluation and marketing, including network development. (Id.)
51. At the time that Ewald applied for the Higher Education and Research Position,
she was the Chairperson and Marketing and Research Director of UnoPhone AS/UnoPhone Uganda, Ltd., where she had worked for five years. (J-4-0004; Ewald 74.) UnoPhone AS was part of TM Holding AS/Venturos AD. (Ewald 74.) At the time that Ewald was contemplating whether to come to the United States and take the expert position with the Embassy, there were approximately four or five companies held by TM Holding, to which Ewald could have transitioned, in roles similar to that which she held at UnoPhone, and at the same compensation. (Ewald 77-79; 476; Mikalsen 1195-96.)
52. Prior to UnoPhone, Ewald worked as the Manager of Business Network Development for TM Holding, as the International Project Coordinator and Manager for Norwegian Investor Forum/IT Fornebu, and as the Account Manager of Business Alliances and Project Management for Oracle. (J-4-0004; Ewald 73-79.)
53. Except for IT Fornebu, all of Ewald's former employers were private, nongovernment companies. (Ewald 68-69, 79.) In contrast, IT Fornebu was a 50/50 government/private industry business endeavor aimed at stimulating growth in Norwegian businesses and the economy, including initiatives in research-based innovation. (Id.) TM Holding/Venturos AS was a private equity group that invested in the IT Fornebu project. (Ewald 72-73.) Ewald's role in TM Holding/Venturos AS was primarily in the area of business network development. (Ewald 73.)
54. Ewald's total compensation at TM Holding/Venturos where she worked from 2000, through her acceptance of the Higher Education and Research Position with the Embassy was approximately 950,000 Norwegian Kroner (" NOK" ). (Ewald 76-77, 475; Mikalsen 1197.) Depending on the exchange rate, 950,000 NOK is the equivalent of approximately $170,000 to $190,000. (Ewald 76; D-60-0010; see also, P-167-0001 (charting Ewald's overall compensation during 2007 and the first nine months of 2008, prior to Ewald's move to the United States and demonstrating that Ewald earned an overall compensation package worth approximately $190,000, annualized, in 2008).)
55. Ewald reviewed Mykletun's July 3, 2008 email about the two positions at the New Model Consulate in Minneapolis. (Ewald 89-90; J-2-0001.) She considered both expert positions " exciting" and " two sides of the same coin." (Ewald 89.) Although she believed that she was qualified for both expert positions, she was particularly interested in the Higher Education and Research Position, because it represented a change from her work in business development for the preceding 15 years. (Ewald 105.) She also believed that the focus on research-based innovation was exciting and would put her at the cutting edge of technology, potentially spawning additional business opportunities for Norway. (Ewald 105.)
56. Prior to receiving the job descriptions for the two expert positions from Mykletun, Ewald was not looking for a new job because she was happy with her position as Chairperson for UnoPhone. (Ewald 77-78.) Neither Ewald, nor her then-domestic partner, now-husband, Terje Mikalsen, had any intention of leaving Norway to move to the United States. (Ewald 77-78; Mikalsen 1200.) They were well-established in Norway. Not only had they recently purchased and remodeled a home in Norway, but their family members also lived there, including Mikalsen's eight grandchildren. (Ewald 77-78, 80, 83; Mikalsen 1200.)
57. Intrigued by the postings, however, Ewald showed them to Mikalsen. (Ewald 80-81; Mikalsen 1198-1201.) Although Mikalsen was struck by the similarity between the two expert positions, he believed
that the Higher Education and Research Position was practically tailored for Ewald. (Id.) Mikalsen told Ewald, " wow . . . if you apply, you'll get it." (Ewald 81; Mikalsen 1198-1199.) Although Mikalsen was excited for Ewald, he was unsettled by the prospect that Ewald might be offered the job, precipitating a move to Minnesota. (Ewald 80-81; Mikalsen 1200.)
58. Ultimately, however, Mikalsen supported Ewald's interest in the position. Mikalsen viewed the expert position as an opportunity for Ewald's career to take priority in their relationship (Mikalsen 1200), even if it meant that the couple would have to uproot themselves from Norway and move to the United States. (Ewald 96.) Mikalsen believed that Ewald could use her connections in Norway and in the United States to help further important research collaboration both in education and business. (Mikalsen 1200.)
59. On July 4, 2008, Ewald expressed her interest in the expert positions to Mykletun and asked to speak with him further. (J-2-0001; Ewald 89-90.) Mykletun invited Ewald to his office at the MFA in Oslo to talk about the expert positions. (Ewald 90.) Mykletun never informed Ewald that he was talking to her as a friend only, and not as a representative of the MFA. (Ewald 95.) During the meeting, Mykletun indicated that the two expert positions were very substantive, focused positions. (Ewald 90-92.) Mykletun advised that the expert positions were for three-to-five-year terms. (Mykletun 1636-37.) The job descriptions, as well as the postings, also indicated a three-year commitment with a possible extension. (J-2-0002-3.) Although Mykletun explained to Ewald that the positions were limited-term appointments, he also expressed his hope that the New Model Consulate would ultimately succeed and that the expert positions would become permanent, as opposed to limited-term. (Mykletun 1636-37.) Accordingly, Ewald was under the impression that the positions involved a long-term commitment. (Ewald 90-92.)
60. Although Mykletun did not discuss the salary range for the positions (Mykletun 1598), he did inform Ewald that the positions would be equal and parallel (Ewald 91) and that the budget of 1.5 million NOK would be divided evenly to cover salary and travel. (Id.; Mykletun 1598-99.) These representations are consistent with what Mykletun told others in the Norwegian-American community. (Hansen 1081.) Mykletun also notified Ewald that the two expert positions should work as a team to achieve the ultimate objective of increasing research-based innovation. (Ewald 91.) Mykletun explained to Ewald that the purpose of the expert positions was to network and promote research-based innovation on behalf of Norway, because it was important for Norway to be connected and collaborate with research and business in the Midwest. (Ewald 93.)
61. During their meeting, Mykletun sensed that Ewald was excited about the prospect of moving back to Minnesota. (Mykletun 1605, 1617). Ewald's parents and other family members live in the Minneapolis area, Ewald's younger daughter was beginning college at the University of Minnesota, and her older daughter was also attending college in the United States. (Ewald 141, 385; Ex. P-23-0006.)
62. After speaking with Mykletun, Ewald spoke by telephone with Gandrud, because he was one of the two contacts for the Higher Education and Research Position. (Ewald 96-97.) Ewald told Gandrud about her business background, as well as her experience with the MIT Club of Norway and the University of Minnesota Alumni Club in Norway. (Ewald 97-98.) Ewald also discussed her background in
research-based innovation and her enthusiasm for the Higher Education and Research Position. (Ewald 98.)
63. On July 17, 2008, Ewald applied for the Higher Education and Research Position. (J-4-0001-4.) Ewald received a very positive reference from Mykletun. (Johne Dep. 44.) Although both Ewald and Mykletun considered Ewald qualified for both expert positions, and although Mykletun encouraged her to apply for both, Ewald applied only for the Higher Education and Research Position because she thought it would be more interesting and enjoyable. (Ewald 95 105; Mikalsen 1201.) As Ewald later wrote to Ambassador
Strømmen, had she known of the better salary and terms that accompanied the Innovation and Business Position, she would have likely applied for it, as she possessed the necessary experience. (P-100-0001.)
64. On September 2 and 3, 2008, the Hiring Committee interviewed approximately 11 applicants for both positions in Minneapolis. (Mondale 610.) During Ewald's interview, the Hiring Committee and Ewald discussed Ewald's background, as well as the objectives of the expert positions as being " equal" and " parallel," and explained that the experts would function as a team, because both research and commercialization were important to achieve Norway's goals. (Ewald 107-110; see also Johne Dep. 37-38, 49, 94 (stating that the positions were meant to be parallel and operate as a team).) Ewald's recollection about the expert positions being equal, parallel, and working together as a team (albeit in different focus areas) is consistent with what Gandrud told others in the Norwegian-American community. (Hansen 1100-01; Nash 553-555; Mueller 1137.)
65. During Ewald's interview, the Hiring Committee discussed the fact that capitalizing on the intersection of research, business, and innovation is an important policy objective for Norway; and the Committee discussed the importance of the internationalization of students and business. (Ewald 108.) The Committee members further addressed the commercialization of research, noting that collaboration between the two expert positions would help Norway develop research opportunities. (Ewald 109.) Additionally, the Hiring Committee members explained that the expert officers would engage with Science Week, an annual conference aimed at fostering connections in science and research between Norway and the United States. (Id.) The Hiring Committee members also addressed the importance of student exchanges. (Ewald 109-110.)
66. At the time of the interviews, the salaries for the two positions had not been determined. (Mondale 673-75.) During Ewald's interview, members of the Hiring Committee discussed a general salary range of $40,000 to $70,000 for both expert positions. (Ewald 110-11; Gandrud 710. ) This range was typical for other locally-employed Embassy officer-level employees and other consular officers of Norway in the United States at that time. (Vibe Dep. 56; Berg 1282.) Gandrud had commented on this general $40,000 to $70,000 pay range to others in the Norwegian-American community. (Hanson 1100-01; Nash 553-55; Mueller 1137.)
67. Ewald was not dissuaded by the salary range and remained enthusiastic about the Higher Education and Research Position, feeling " so sure that this was a good job for [her]." (Ewald 390; 108-09.) Gandrud recalled that Ewald " had the highest interest . . . of any of the applicants for either job[ ]. . . .[H]er enthusiasm was infectious and she made the same impression on all" of the Hiring Committee members. (Gandrud 977.)
68. The Hiring Committee members did not ask the interviewees about their salary history. (Id.) There was no discussion of health insurance or other benefits at the interviews. (Gandrud 792-93.) Ewald recalled that Gandrud seemed apologetic about the salary, but told her that " they," presumably the Embassy, would try to compensate both experts at the top of the salary range. (Ewald 110-111.)
69. Ewald was familiar with the salary and compensation system for Norwegian public employees. (Ewald 62-63.) Her understanding was that employees of the Norwegian government are compensated through a ladder system called " Lø nnstrinn," in which employees are placed at a specific level of compensation appropriate for their level of employment. (Ewald 111-112;
Strømmen 828.) Ewald believed that the Lø nnstrinn system would apply to the expert positions. (Ewald 111-12.) That, coupled with the statements by Gandrud regarding the salary range, led her to believe that neither the salary, nor salary range, were negotiable. (Ewald 111-12.) In actuality, while the Lø nnstrinn applies to most Norwegian government employees, the Embassy does not follow the Lø nnstrinn for locally-employed employees, such as the expert officers. (Strømmen 828.)
70. After Ewald's interview, Gandrud contacted her, telling her that the Hiring Committee was enthusiastic about her and that she was one of the top candidates. (Ewald 113.) Vice President Mondale considered Ewald " a rare find." (Mondale 612.) The Hiring Committee had been particularly impressed with Ewald's passion for the job, along with her connections, knowledge, and experience. (Rognlie 1410.) Gandrud believed that Ewald would readily accept the Higher Education and Research Position, if it was offered to her. (Gandrud 740.)
71. Anders Davidson learned of the Innovation and Business Position through a job posting in his St. Olaf College alumni newsletter. (Davidson 1911.) At the time, Davidson was employed as a Business Development Manager in International Operations at 3M and was not looking for another job. (Davidson 1903.) His position at 3M required a great deal of travel. (Davidson 1905.) Davidson was attracted to the expert position because he believed it would provide a lifestyle change, allowing him to spend more time with his young children and shorten his work commute. (Davidson 1908-09; 1924.) While Davidson possessed Norwegian ancestry and an affinity for Norway (Davidson 1908), Davidson did not speak or write Norwegian; in fact, he had never visited Norway. (Davidson 1987.) Davidson was also unfamiliar with the Strategy and had never seen the document until it was presented to him as an exhibit at trial. (Davidson 2010.)
72. Davidson received an MBA from the University of Minnesota. (Davidson 1884-85; J-5-0002.) Prior to working at 3M, he had also worked at Microsoft. (Davidson 1885-86.) Based on his experience at 3M and in business school, Davidson had experience in analyzing and assessing companies and business plans. (Davidson 1898-1902; 1907.)
73. Davidson applied for the Innovation and Business Position " at the last minute" on July 25, 2008. (Davidson 1910; J-50001.) The Hiring Committee selected Davidson as a candidate to interview based on his business background and experience, particularly his international work at 3M. (Rognlie 1404-06.)
74. Davidson interviewed with the same Hiring Committee members as Ewald: Vice President Mondale, Gandrud, Johne, and Rognlie. (Davidson 1911.) Davidson recalls that the interviewers stated
that the salary range was $40,000 to $60,000 or $70,000. (Davidson 1913.) When told of the salary range, Davidson made no negative comment, although he testified that he felt that the salary was " unrealistically low." (Davidson 1913.)
75. During Davidson's interview, he did not volunteer information about his day care concerns for his daughter. (Gandrud 722-23; Davidson 1913.) Nonetheless, Gandrud believes that during the interview there was " a sign" that Davidson was concerned about child care. (Gandrud 722-23.) While Davidson does not believe that he ever specifically referred to " day care" in subsequent conversations with Gandrud, he admitted that after the interview he did discuss working three days per week, in order to personally provide child care for his daughter two days per week. (Davidson 1996-98.) The Hiring Committee made no inquiry of Ewald's prior salary or her family situation. (Vibe Dep. 83-84; Rognlie 1463-64; Mondale 626-27.)
76. Based on the interview, Gandrud gave Davidson positive marks, indicating in his interview notes that Davidson was " fresh," " eager" and " lower $." (D-5-0006.) Vice President Mondale testified that Davidson was " young and strong." (Mondale 612.) Following the interview, Davidson remained interested in the position, but was privately concerned about the suggested salary range. (Davidson 1914.)
77. After the interviews, the Hiring Committee concluded that Davidson was the top candidate for the Innovation and Business Position. (J-6-0002; Mondale 612, 629-30, 687-89; Gandrud 978; Rognlie 1404-06.) Although Gandrud had not discussed compensation directly with Davidson, Gandrud was concerned that the salary range for the Innovation and Business Position might be too low and that it might affect Davidson's willingness to accept the position. (Gandrud 575-76; 972-73; 981-82; D-5-0006, D-5-0008.)
Communications on September 4, 2008
78. On the morning of September 4, 2008 the day after the interviews were completed at approximately 9:20 a.m., Gandrud emailed Rognlie and Johne, copying Ambassador
Strømmen, regarding Ewald. (D-6-0001.) Referring to the Hiring Committee's " clear and obvious consensus" that Ewald was their choice for the Higher Education and Research Position, Gandrud " urgently request[ed]" that Rognlie and Johne recommend Ewald to the Stakeholders for approval. (Id.) Gandrud sought a quick response so that Vice President Mondale, who was in Oslo at the time, could introduce Ewald as the new Higher Education and Research Officer at an upcoming meeting with the Stakeholders. (Id.) In addition, if Ewald could be announced quickly, her name and new title could be prominently featured in materials for an upcoming United States-Norway forum. (P-7-0004.)
79. Shortly after receiving the email, Ambassador
Strømmen telephoned Gandrud to discuss the fortuitous coincidence that Vice President Mondale was in Oslo and might be able to announce the hiring of Ewald during his visit. (Id.) Ambassador
Strømmen followed up with an email to Rognlie, Johne, and others, asking, " Is it possible to get this done so fast?" (P-7-0007.) The Ambassador stated, " We can at least come with an offer in any case . . . ." (Id.) He also inquired, " Who must be notified in Norway? Who makes the formal decision? Is it not the Embassy?" (Id.)
80. In an email sent at 10:07 a.m. that same day, Johne responded to Gandrud and Ambassador
Strømmen. (P-7-0001-2.) Johne indicated that she and Rognlie had created a draft document, ranking the candidates, focusing on the number one candidates for both positions. (Id.) She stated that the report on the selection and
ranking of candidates would be completed within two hours and would be sent to Gandrud. (Id.) Johne indicated that once she received Gandrud's feedback, the document would be transmitted to Norway later that same day in order to give the Stakeholders an opportunity to review it. (Id.) Johne directed, " if the Advisory Board approves Friday [9/5/08], then [Vice President] Mondale may announce the two names, IF THEY have been informed." (P-7-0002.) She further advised that Gandrud should contact the two candidates, informing them that they were the top choices, subject to final approval. (Id.) She also indicated that " the embassy will check salary and benefits in more details [sic] today, for Gary to inform when you contact them." (Id.)
81. That same morning, Gandrud telephoned both Ewald and Davidson. (Gandrud 719-20.) In his conversation with Davidson, Gandrud indicated that Davidson was the top candidate for the Innovation and Business Position, and asked him what he thought about a salary of $60,000. (Gandrud 720, 722; Davidson 1915.) Gandrud did not have authority to make an official salary offer at the time and told Davidson as much. (Gandrud 720-21, 984). Davidson did not interpret the $60,000 figure as a formal offer. (Davidson 1992). Rather, Davidson felt that Gandrud was " sort of [a] courier" and that he was expressing an initial level of interest in Davidson and " checking in about the salary." (Id. at 1992-93). At trial, Gandrud deduced, by process of elimination, that he must have unilaterally made the decision to suggest the $60,000 figure to Davidson. (Gandrud 720, 722;
Strømmen 872.) In fact, some members of the Hiring Committee were not aware that Gandrud had initially suggested a salary of $60,000 to Davidson. (Rognlie 1447.)
82. In response to Gandrud's question about salary, Davidson, who believed that the salary range was limited, did not demand a higher salary. (Davidson 1918.) Rather, Davidson asked whether it would be possible to work on a part-time basis, three days per week, for $60,000. (Davidson 1916.) Davidson told Gandrud that his base salary at 3M was $108,000. (Gandrud 721, 986; Davidson 1916-18; P-7-0001.) Based on his then-current salary at 3M, Davidson believed that if he were able to work three days a week for $60,000, his wife could work while Davidson stayed home two days a week with their youngest child. (Davidson 1917.) Davidson testified, " my response to them was not, I'm not going to work for 60, you have to pay me at least 100, I said, let's work within the 60 budget, can we do something else[?]" (Davidson 1921.) Gandrud responded that he would take Davidson's proposal back to the decision-makers, but that the three-day-a-week arrangement would not work. (Davidson 1917; Gandrud 721.) A part-time arrangement was not considered an option because both expert positions were intended as full-time positions. (Gandrud 721-22; Mondale 627, 689; Davidson 1918-19.)
83. Although Gandrud asked that Davidson's salary reflect the salary market rate for a similar position, Gandrud conceded at trial that Davidson was not applying for employment in the business community. (Gandrud 736.) Gandrud also conceded that Davidson did not request that Gandrud adjust his salary to reflect market rates. (Gandrud 735-736.) And, Davidson could not recall whether Gandrud asked him about his salary at 3M, or whether, unprompted, he shared his then-current salary of $108,000. (Davidson 1918.) Therefore, Gandrud decided to follow-up about child care during his telephone conversation with Davidson. (Gandrud 722-23.)
84. At approximately 11:30 a.m. that same morning, Gandrud emailed Johne, Rognlie, Ambassador
Strømmen, and others, raising the issue of salary for Davidson:
Anders Davidson has been informed. Ellen Ewald has also been informed. Both are showing the same enthusiasm that they demonstrated to us in the interview. Davidson, after speaking with his wife, did express discomfort with the salary and told me that his base salary is currently $108,000. While I told him that I do not intend to negotiate with him, I pointed out to him that we were sensitive [sic] the salary issue and intended to speak with him after he had discussed the matter with his family. With young children, day care, etc., he has a legitimate concern. [Honorary Consul General] Mondale shares this concern as well. Anders stated that the salary level would not diminish his desire for this position but it is his only concern.
As you know, our market research here at Faegre concluded that the Education and Research position was hitting the general market for that position. They concluded that the Innovation and Business Development position was below the low end of the market for similar skills. While not wanting to complicate this any further, I want this part of your consideration. We will not negotiate with him but we should be fair to him, the position and to ourselves.
(P-7-0001.) The " market research" referenced in the email referred to the one-hour search performed by Manalo. (Gandrud 724.) Although Gandrud testified that he did not refer to young children and day care to suggest that Davidson be paid more, but was merely explaining why Davidson suggested working three days per week for $60,000 (Gandrud 722-25; 728), Gandrud's September 4 email sent at 11:30, quoted above, speaks for itself. (P-7-0001.) The email makes no mention of Davidson's suggestion of working part-time for $60,000. (Id.) Moreover, in the email, Gandrud expressly disclaims that he and Davidson had engaged in any salary negotiations. (Id.) Rather, the email only refers to Davidson's then-salary of $108,000, identifying Davidson's young children and day care needs, as well as the so-called market research conducted by Manalo, as factors to consider in setting Davidson's salary. (Id.) Likewise, Gandrud testified that he provided the following information to the Hiring Committee with respect to the recommendation to offer Davidson $100,000: Davidson's day care situation, his prior salary, his willingness to work three days a week, and the so-called market research conducted by Manalo. (Gandrud 725, 728-729; P-7-0001.)
85. Beyond the information contained in Gandrud's September 4, 2008 email (above), Defendant's witnesses were surprisingly unclear about the factors that were considered in the ultimate decision to pay Davidson $40,000 more than was originally offered to him:
A. Steering Committee member Berg testified, " that we need[ed] to pay him more to get him on board because he ha[d] a higher salary [when he interviewed for the position], and to have him accept the job, we need[ed] to pay him $100,000." (Berg 1253, 1284-85.)
B. Steering Committee Chair Finborud testified in her deposition that they " would have to pay more to a more experienced person from a private business life." (Finborud Dep. 30, 37.)
C. Ambassador Strømmen testified that he does not know what factors were considered in setting the compensation
packages for the two expert positions. (Strømmen 876-77.)
D. Johne testified that she was aware of three reasons that justified Davidson receiving a higher salary than Ewald: (1) the so-called market research about salaries; (2) Davidson's prior salary; and (3) Davidson's child care needs. (Johne Dep. 73.)
E. Vice President Mondale testified that the $100,000 salary was " what at least one big company determined his market value to be." (Mondale 626.) He relied on the information that Gandrud had provided to him, and was unaware of how poorly the market research was conducted.
F. Rognlie believes that Davidson was offered more money because the market demanded a higher salary for business-related positions, as opposed to education-related positions, and because Davidson had a higher salary from his previous job. (Rognlie 1478.)
86. The Embassy did not consider any of these factors in determining the salary offered to Ewald. Rather:
A. Ambassador Strømmen testified that, much like having tax debts or wanting to buy a big boat, a need for day care was not a legitimate basis for a higher salary, and, for all the Embassy knew, " Ewald could be needing day care" costs to be covered as well. (Strømmen 877.)
B. Vice President Mondale conceded that the Embassy did not consider Ewald's 15 years of prior business experience in making the salary decision. (Mondale 700.)
C. The Hiring Committee did not determine Ewald's prior salary, but they knew Davidson's prior salary. (Rognlie 1463-64.)
87. When faced with the reality that there was no tangible reason to pay Davidson more than Ewald, and despite the fact that neither expert position was in the business sector nor the education sector, but rather, in the Embassy, all the Embassy could say at trial was that " common sense" dictates that a person " in business" should be paid more than a person " in education." (Rognlie 1480, 1510.)
88. Ambassador Strømmen testified that, while recruiting for the expert positions, he was concerned that too much money would be spent on salaries. (Strømmen 842.) When he initially saw the proposed salaries, which reflected that a woman would be paid less than a man, Ambassador
Strømmen asked questions of Gandrud, Vice President Mondale, and others about the salary differential. (Strømmen 839-40.) The feedback that he received left him with the impression that as long as the jobs were different, a salary differential was acceptable. (Strømmen 840.)
89. Ambassador Strømmen concedes that individuals involved in hiring the two experts at the Consulate should have used the Guidance. (Strømmen 861.) Members of the Hiring Committee admit that they did not follow the Guidance in the hiring process for the two expert positions, as Rognlie took no specific steps to protect against discrimination in the selection process, nor did anything to ensure that Ewald received equal pay for equal work. (Rognlie 1495-9896.) Once Rognlie learned of Ewald's concern about discriminating pay, Rognlie did nothing to investigate whether Ewald was receiving equal pay for equal work, even though she was obligated to ensure compliance with the Guidance as a leader in the MFA. (Rognlie 1490, 1492, 1498.)
Hiring of Ewald and Davidson
90. On September 5, 2008, Johne emailed the Stakeholders, Rognlie, Gandrud, Vice President Mondale, and numerous other Norwegian government employees, recommending that Ewald and Davidson be approved for the two expert positions and stating that " both [were] clear first choice candidates, who would constitute an excellent team." (P-17-0011-12.) Johne informed the recipients of the email that, while a salary of $60,000 - $70,000 was appropriate for the Higher Education and Research position,
it became equally clear that to be able to hire the right person for the innovation and business development officer a salary level within reach of [$100,000] has to be considered. The Embassy and the Honorary General consulate recommend that the Advisory board give very serious consideration to the importance of hiring the right person for the business development position.
(Id.) Johne performed no assessments herself regarding salary, and she, like Rognlie, relied on what Gandrud had told her about setting Davidson's salary. (Johne Dep. 59-60; Rognlie 1448-49.) In her email, Johne provided " calculation examples . . . of what such salaries translate to in NOK, and thus how they affect the total budget of 750,000 NOK for each position." (P-17-0012.) In her examples, Johne wrote:
example a.) a gross salary of USD 68.000 plus health insurance per year USD 7.050, and pension insurance of USD 7.000 corresponds to a yearly cost of NOK 421.535. example b.) a gross salary of USD 100.000 plus health insurance for a family with two small children USD 20.200 and pension insurance of USD 10.000 corresponds to a yearly cost of NOK 669.000.
(P-17-0012-13.) Ewald testified that when she subsequently learned of the wide dissemination of this email with its references to her lower salary she felt embarrassed that while so many people knew of the significant pay difference between her and Davidson, she did not. (Ewald 314.)
91. Later on September 5, 2008, Gandrud sent Davidson an email notifying him that the Embassy was working on his behalf to increase his salary. (J-7-0001.) Gandrud noted that although Davidson did not request a higher salary, " [the] Embassy, Mondale and I joined in asking [the Stakeholders] that the salary be more reflective of the market." (J-7-0001.) Gandrud would not label the communication between himself, Davidson, and the Embassy, as " negotiations." (Gandrud 725-27; P-7-0001.)
92. Also on September 5, 2008, Johne confidentially notified Ewald that she was " strongly recommended as the no. 1 candidate," but had to pass the " formalities of the stakeholder meeting on Wednesday [September 10, 2008]." (Ewald 113, 391; D-7-0017.) Johne told Ewald of the intent to have Vice President Mondale announce her hiring at the reception following the Steering Committee's meeting on September 10, 2008. (D-7-0017.) The same day, Gandrud sent Ewald materials related to the United States-Norway Forum, at which Ewald was expected to give remarks as part of her work for the Honorary Consulate. (Ewald 115; D-10.)
93. On September 8, 2008, Gandrud forwarded Johne's widely-disseminated email with salary calculations to Davidson but not to Ewald stating, " FYI: Deeply confidential . . . you see our process . . . you should note that the salary is 'in play.'" (P-8-0001; J-8-0001.) Davidson responded, " Thanks for keeping me abreast of the process. I really appreciate the consideration of the salary." (J-8-0001.) Prior to receiving the September 8 email from Gandrud, Davidson did not
know that the Hiring Committee had sought the Steering Committee's approval for a higher salary for the Innovation and Business Position. (Davidson 2001-02; P-8.) Gandrud conceded that while he provided Ewald's private and confidential proposed salary information to Davidson prior to Ewald's hire, he did not provide Davidson's salary information to Ewald. (Gandrud 739-740.) Gandrud testified that he did not know whether Ewald would have taken the job had she known that Davidson's salary was higher than hers. (Gandrud 740-741.) Gandrud also testified that he never considered that it might be humiliating for Ewald to have so many people see that her work was valued less than the work of her male coworker. (Gandrud 741.)
94. On September 10, 2008, Ewald attended the Oslo reception at which Vice President Mondale announced her selection for the Higher Education and Research Position in Minneapolis. (Mondale 680-682; J-9-0004-5.) Former U.S. Ambassador to Norway Benson K. Whitney congratulated Gandrud on Ewald's selection, describing her as " bright, energetic, language-capable and charming." (P-10-0001.) Ambassador Whitney went on to say, " I am very excited about the position and consider it one of the MOST important ways to build 21st century connections with Norway." (P-10-0001.) Although Ewald was announced as the Higher Education and Research hire, she had not been formally offered the expert position and salary had not been discussed. (Ewald 116, 396.) Vice President Mondale was not aware that Ewald had not yet been offered a specific salary at the time of the Oslo reception. (Mondale 622.) Ewald knew prior to attending the reception that Vice President Mondale planned to announce that she had been selected as the Higher Education and Research Officer. (D-7-0017.) However, she testified that she would not have attended the reception in Oslo, nor would she have accepted the expert position, had she known that Davidson would be paid a higher salary. (Ewald 478-479.)
95. Prior to the reception on September 10, 2008, the Stakeholders met for the first time in Oslo (P-11-0001) and created the Steering Committee. (Berg 1245.) Again, the Steering Committee was tasked with ensuring that the topics and projects undertaken by the two expert positions were of interest to the Stakeholders. (Berg 1245.) The Steering Committee members included Chair Finborud of the MFA, Berg of Innovation Norway, Reidar Bye of SINTEF, Sten Anders Berge of the MFA, Ragnhild Skå lid of the Norwegian Ministry of Education and Research, Olav Stave of the Norwegian Association of Higher Education Institutions, Gaute Lenvik of the Norwegian Ministry of Agriculture and Food, Morten Aasland of the MFA, and a representative of the Research Council of Norway. (See P-11-0001.) Steering Committee Member Berg testified about the Steering Committee's obligation, stating, " I was very clear [that] this has to be a steering committee. I wouldn't spend time if this was just an advisory board coming up with suggestions that nobody needed to listen to." (Berg 1251.) The Steering Committee also required the Honorary Consul General in Minneapolis, the Embassy in Washington, as well as the MFA section for Economic and Commercial Affairs, to keep the Steering Committee members informed of the work and developments of the two expert positions. (P-11-0001.) During this meeting, Vice President Mondale reported to the Steering Committee that the Hiring Committee had found " two excellent candidates for the expert positions." (P-11-0002.)
96. After the Stakeholders' meeting and reception, Gandrud updated Davidson
on the budget process and told him, " expect to hear a report tomorrow." (J-8-0001.) The Steering Committee, however, was not actually required to approve the selection of or the compensation for the two candidates. (Finborud Dep. 24; Berg 1288; P-17-0003.) In the minutes of the September 10 Stakeholders' meeting, it was reported that:
[s]ome of the members of the board expressed their concern that the proposed pay level for the innovation and business development position would decrease the room of action for the higher education and research position. In total, the Stakeholders will contribute NOK 750,000 for each position each year. If this is not sufficient to secure a high standard of the expert positions it was decided that the MFA will consider increasing this amount.
(P-11-0002.) On September 11, 2008, Steering Committee Member Aasland, the Norwegian Minister of North America, updated Gandrud on the Steering Committee meeting, which Aasland had attended. (P-17-0003.) Aasland recounted, " [a]mong the Stakeholders the understanding is that the NOK 1.5 should be divided equally between the two officers/fields (i.e., for salary, travel, etc)." (P-17-0003; P-14-0002; Ewald 313.) In fact, however, the funds were never split equally between Ewald and Davidson. (Vibe Dep. 50.)
97. Also on September 11, 2008, Gandrud was in contact via email with both Davidson and Ewald. (J-8-0001; J-9-0004-5.) He told Davidson that the Stakeholders were finalizing the budget and that " you [Davidson] will be pleased with the salary adjustment." (J-8-0001.) Also that morning, Ewald updated Gandrud on the Oslo reception and her meetings with Vice President Mondale and several Stakeholders. (J-9-0004-5.) Gandrud responded to Ewald's email, noting that he had received a " glowing report from the Foreign Ministry" about the Oslo reception, and the Stakeholders were " very pleased with the process and [Ewald's] selection." (J-9-00004.) Although he did not mention her salary, ironically, Gandrud told Ewald " [t]he candidates made them re-think the economic package (salary, benefits and budget) and you will be pleased with their additional commitment." (J-9-0004.)
98. On September 12, 2008, Gandrud sent Ewald an email stating, " after shaking a few trees, talking to [Honorary Counsel General] Mondale and the Embassy, I have a better focus on some of the administrative details. I want to officially offer you the position of education research officer." (P-12-0002; see also Ewald 118-119.) Gandrud advised Ewald that he preferred to discuss the " economic details of the offer" by phone rather than by e-mail. (P-12-0002.) Gandrud further noted, " [a]s for your specific duties, goals, obligations and expectations for the expert position, I would first assure you that while we are starting from ground zero, we do have a very good idea of what we need to accomplish, what constituencies we wish to serve and how to go about it." (P-12-0002.) Gandrud stated that he was impatient for Ewald to begin, but knew she had " to think about relocating as well." (P-12-0003.)
99. Also on September 12, 2008, Gandrud called and offered Davidson the Innovation and Business Position, which Davidson accepted. (Gandrud 744; Davidson 1922; P-9-0001.) Although Gandrud had refused to discuss the " economic details" of Ewald's offer via email, during his phone call with Davidson, he offered Davidson a salary of $100,000. (Id.) With an annual salary of $100,000, Davidson was the highestpaid local employee of the Embassy in the entire United States. (Wemberg Dep. 35; Log 1877.) In fact, the Embassy paid Davidson a higher salary than two of Davidson's superiors, including
the Embassy's Minister Counselor for Economic Affairs, Rognlie, to whom he reported (Rognlie 1518-20; J-171-0002), and the Embassy's Counselor for Science, Johne, to whom Ewald reported. (J-171-0007.)
100. On September 13, 2008, Ewald discussed her salary with Gandrud on the phone. (Ewald 120-21; Gandrud 716.) Despite the fact that Gandrud had already offered Davidson $100,000, Gandrud misrepresented the truth to Ewald. Gandrud told Ewald that he had worked very hard and was able to get the top of the range for both positions $70,000. (Ewald 120-21.) Gandrud then formally offered Ewald the expert position with a salary of $70,000 and informed her that a pension and parking were included in her employment package as well. (Ewald 121.) When Gandrud told Ewald that both experts were offered salaries at the top of the fixed range, she did not question his statement. (Ewald 120-22; 388-390.) Nor did Ewald attempt to further negotiate her salary because she believed that $70,000 was the highest salary that the Embassy could offer. (Id.) Ewald believed that the salary range was rigid and that the Lø nnstrinn system applied to both expert positions. (Ewald 390.) Gandrud conceded that Ewald was entitled to believe him when he said that she was offered the top of the range. (Gandrud 752-53.) Ewald testified that had Gandrud informed her of the actual difference in pay between her salary and Davidson's, she would never have accepted the position. (Ewald 479.)
101. The September 13, 2008 conversation was the first time Gandrud provided Ewald with specific salary information. (Gandrud 748.) Before that time, Gandrud did not believe that the economic portion of Ewald's offer was relevant. (Gandrud 752.) Gandrud remarkably believed that Ewald would have taken the expert position regardless of the salary. (Id.)
102. On September 13, 2008, Gandrud reported to Johne that he had a " very long conversation today and [Ewald] accepts our offer, $70Mꗩ觾藦ꖶ." (P-12-0001.) Gandrud noted " now we have both on board!" (P-12-0002.) Johne responded, " the embassy would issue contracts" as they " had a meeting the day before on details!" (P-12-0001.) Johne asked, " Did you offer 100 health pension to Anderson? [sic] And he accepted?" (P-12-0001.) Gandrud responded affirmatively. (P-12-0001.)
103. Also on September 13, 2008, Gandrud replied to Steering Committee Member Aasland's September 11, 2008 email, in which Aasland had reiterated the Steering Committee's understanding that funding was to be equally split for the two expert positions. (P-17-0002.) Although Gandrud informed Aasland that " both candidates have accepted our offer," he did not mention the candidates' salaries. (P-17-0002.) Moreover, Gandrud did not address the fact that the Steering Committee's belief that both candidates would be offered identical salaries, differed from the actual salaries offered to the candidates. (Id.)
104. On September 16, 2008, Gandrud emailed Kathy Tunheim, a public relations consultant in Minnesota and a Norwegian-American, asking her to draft a press release for the Consulate, in order to: (1) explain the New Model Consulate; and (2) introduce the two officers to the community. (Tunheim 202-203, 208-09, 219-221; P-16-0001.) In an effort to understand the nature of the two expert positions, Tunheim asked whether the expert positions were both full-time positions. (Tunheim 214-15; P-16-0001.) Though Tunheim did not request salary information, Gandrud was again untruthful and volunteered that " [b]oth [were] full time [off record $100,000 positions]," and offered
positive descriptions of both Ewald and Davidson. (Tunheim 214-15; Gandrud 768; P-16-0001.) While Tunheim had no intention of using the salary information in the press release, she understood Gandrud's reference to salary to mean that " they were senior positions that were worthy of our putting out a press release to suggest these were going to be go-to people in the community," and to convey the significant commitment made by Norway. (Tunheim 214-15, 217.) Gandrud never expressed to Tunheim that one expert position was better or more important than the other, which led Tunheim to assume that they were comparable positions. (Tunheim 211; P-16-0001.) Tunheim assumed that the information provided by Gandrud was accurate and truthful. (Tunheim 216.)
105. While drafting the press release, Tunheim asked Gandrud for additional information about the experts' duties. (J-10-0010-12.) Gandrud asked Ewald and Davidson to respond to Tunheim's request. (J-10-0009.) In her email response, Ewald pasted a copy of the job posting for her position and noted that although Davidson's position was " different from mine, there are some general comments that might be made which could apply to both of our jobs." (J-10-0004.) She observed that in the New Model Consulate, the two positions were:
dedicated and focused positions aimed at supporting specific strategic goals of the Norwegian government and the participating ministries and institutions. Moreover, these goals have an overriding objective of promoting positive relations and building bridges between U.S. (in particular the mid-west) and Norway in the areas of education, research, business and innovations . . . Our duties will be based and measured on supporting these goals.
106. Also on September 16, 2008, Gandrud emailed the Embassy noting that Davidson's offer was for a salary of $100,000, along with pension benefits, and health insurance for a family of four, while Ewald's offer was for a salary of $70,000, pension benefits, and health insurance. (P-17-0001.) Gandrud did not specify the number of persons that Ewald's health insurance was intended to cover. (Id.)
107. On September 18, 2008, Gandrud advised Davidson that " The Embassy is finalizing the Contract I have reviewed it you will like it." (P-18-0001.) Gandrud asked Davidson for additional information regarding his family for the purpose of finalizing Davidson's benefits package. (Gandrud 769-70; P-18-0001.) However, Gandrud did not ask Ewald for information about her family. (Id.)
108. Ewald executed her Employment Agreement on November 4, 2008. (J-12-0001-5.) The Agreement set forth her job description and title, salary of $70,000, pension contribution, holidays, working hours, and various other terms. (Id.) Although her salary was set at $70,000 in the Agreement, in actuality, her annual base compensation was $75,355. (Trial Transcript Stipulation 920-21; Davidson 2007-08.) The Embassy paid Ewald the additional $5,355 in order to account for payroll taxes. (Id.) Additionally, Ewald received a pension contribution that comprised ten percent of the $70,000 salary outlined in the Agreement $7,000 per year. (J-12-0001-4.) Therefore, during the course of her employment, Ewald received $75,355 in base compensation, plus $7,000 in pension. (Trial Transcript Stipulation 920-21.)
109. Davidson received and executed a similar Employment Agreement on October
14, 2008. (Trial Transcript Stipulation 920-21; J-11-0001-0005.) However, unlike Ewald, Davidson's annual salary was $100,000. (Id.) Davidson did not receive an additional payment to account for payroll taxes, to which he did not object, because he knew that he was earning more than Ewald. (Davidson 2008.) During the course of his employment, Davidson also received a pension contribution that comprised ten percent his base salary $10,000 each year. (Id.; Davidson 2006.) Additionally, Davidson received uninterrupted health benefits for himself, his spouse, and his two children throughout his employment. (Davidson 2006.) The salaries, pension amounts, and benefits outlined in Davidson's and Ewald's Employment Agreements were also stipulated to at trial. (Trial Transcript Stipulation 102.)
110. Davidson's and Ewald's Employment Agreements stated, without further elaboration, that " health insurance" was to be provided as part of their compensation packages. (J-11-0002 at ¶ 8; J-12-0002 at ¶ 8.) The Administration Department at the Embassy, under Deputy Kolberg's direction, was responsible for the Employment Agreements. (Rognlie 1493.)
111. In terms of which individual or sub-entity actually set the specific salaries for Davidson and Ewald, Defendant had no clear answer. Although Gandrud told Ewald that the Embassy had set her salary, he later testified that he did not know who set the salaries. (Gandrud 729; Ewald 328-29.) Ambassador
Strømmen testified that he had no role in setting the salaries for the two expert positions, although he approved the recommended salaries. (Strømmen 838-39.) Johne, a leader at the Embassy and one of Ewald's bosses, testified that she had nothing to do with setting the two experts' salaries. (Johne Dep. 59-63; Ewald 317, 329.) According to Steering Committee Chair Finborud, the Stakeholders did not set the salaries. (Finborud Dep. 37.) Rognlie also did not set the salaries; she testified that " [she] didn't take part in the discussions about salary. That was taken care of in Minneapolis." (Rognlie 1446, 1448, 1472-73.)
Ewald Commences Employment
112. Ewald moved from Norway to Minneapolis because she accepted the position at the Honorary Consulate. (Ewald 96, 123; Mikalsen 1200.) Her domestic partner, Terje Mikalsen, required legal assistance concerning his immigration status in order to relocate to Minnesota with Ewald. (Ewald 131-133; Mikalsen 1658-59.) At Gandrud's suggestion, Ewald and Mikalsen hired Elaine Kumpula of the Faegre & Benson law firm to help Mikalsen obtain a green card. (Id.) Ewald and Mikalsen paid Faegre & Benson $18,664.91 for their work. (Trial Transcript Stipulation 131-33.)
113. Ewald officially started her work for the Honorary Consulate on October 1, 2008. (Ewald 123.) Ewald and Davidson were told that they reported to Vice President Mondale and Gandrud. (Ewald 194.) Ewald stated, " [w]e were told very clearly that . . . our directives were to come from Vice President Mondale and Consul Gary Gandrud." (Ewald 175.) Ewald and Davidson were also accountable to the Stakeholders. (Finborud Dep. 44-45; Ewald 194.) The Stakeholders expected Ewald and Davidson to complete the work outlined in their job descriptions and to " follow the signals given to them." (Finborud Dep. 43.) The Stakeholders' directives were to come from the Steering Committee, which was charged with steering the two expert positions. (Berg 1245, 1304-1305.) Although the organization's hierarchy and reporting system was outlined in advance, as a practical matter, correspondence between the Honorary Consulate, the Embassy, and the Stakeholders
reflected the parties' confusion about who was responsible for decision-making. (See e.g., P-26-0001-02 (an email string between Gandrud and Vice President Mondale in which they discuss " a bit of a pattern" of the " Embassy not following through on their commitments," causing Gandrud to state that it was due to a " lack of communication on their end." ); P-38-0005 (an email from Finborud to numerous others, summarizing a 3/13/09 Steering Committee meeting, and noting that " some lack of clarity emerged re: the Steering Committee's role." ).) Gandrud explicitly addressed the lack of clarity in communication and decision-making in a March 15, 2009 email, which contained Davidson's and Ewald's draft vision statements:
Both [Honorary Counsel General] Mondale and I feel it very important that changes and comments be directed to us rather than directly to Ellen and Anders. They have to be responsive to the wishes of the Stakeholders as well as the Embassy. At the same time, we are in real danger of creating confusion and resentment should they hear from different and even competing " supervisors." Mondale and I will be responsible for making them conform to the wishes of the Stakeholders and the Embassy.
(P-41-0006.) Stakeholder Terje Emblem, representing the Research Council of Norway, stated that the Steering Committee's role was a bit amorphous: " The two employees cannot constructively follow many and eventually dissimilar control signals from the Consulate (Gandrud), the Embassy/MFA and the Steering Committee. The Steering Committee's Mandate is unclear on this point." (P-41-0008.)
114. Ewald's and Davidson's job duties were set forth in the job postings. (Johne Dep. 91-92; J-2-0002-3.) The Steering Committee set priorities and expected Ewald to develop a " strong institution network between Norway and U.S.A. on the education and research side." (Finborud Dep. 43-44.) Similarly, the Stakeholders expected Davidson to " also promote and get Norwegian business into the Midwest and connect the ties." (Finborud Dep. 44.)
115. Finborud testified that the two experts were expected to work as a team. (Finborud Dep. 64.) In fact, Finborud explained that the experts were responsible for some overlapping work with institutions concerning research and technology. (Id.) Finborud also testified that research and innovation are " two sides of the same coin." (Finborud Dep. 88; Ewald 30-31.) Ewald's first priority was to " network, to build . . . up connections, cooperations between the various research institutions and other academic institutions." (Finborud Dep. 54.) Davidson was also expected to similarly network in order to facilitate connections between businesses. (Davidson 2014-2015.)
116. In early 2009, both Ewald and Davidson began working on vision statements containing their respective goals, objectives, and anticipated activities, as well as proposed budgets, for the coming year. (Ewald 359-360; J-22-001.) The Stakeholders wanted to evaluate these vision statements. (Id.) On February 18, 2009, Gandrud emailed Gary Smaby, an outside consultant, asking him to review Davidson's vision statement and " coach him." (P-76-0001.)
117. On May 15, 2009, Gandrud sent the draft vision statements to Ambassador
Strømmen, Vice President Mondale, and others, soliciting feedback. (P-41-0010.) Responding to the two drafts, Stakeholder Emblem, of the Research Council of Norway, found that the two vision statements were " very dissimilar in form and content." (P-41-0009-10.) Emblem found that this contradicted the Steering Committee's understanding " that the two positions
would constitute a team, with more related activities and operations, and mutually consistent priorities, etc." (P-41-0007.) Rognlie recommended that the vision statements make clear " that the positions work as a team with somewhat overlapping institutions in relation to research and technology. An example here is renewable energy and environmental technology, as well as medical technology." (P-41-0009-10.)
118. Emblem's organization also found that Davidson's draft vision statement did not sufficiently address research-based innovation. (P-44-0003-4.) The Research Council advised that Davidson have a " clearer goal to develop relationships between Norwegian and American actors in the Midwest within research based activities." (P-44-0003-4.) The Research Council also criticized Davidson's proposed vision statement for its failure to reference any work performed in cooperation with the Research Council, which has " the main responsibility for research based innovation [in Norway]." (P-44-0004.)
119. In a subsequent June 8, 2009 email to Gandrud, Rognlie summarized the Stakeholders' feedback concerning the vision statements:
o The two positions should work as a team. A common vision should be reflected in the Statements. Their work is overlapping regarding research-based innovation and institutional contact.
o The stakeholders have contributed to the budget as a whole and not to one specific position. That means as an example that Anders also should have a dialogue with the Research Council on their work on innovation. The job descriptions should be part of the Vision Statements, but in ...