UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Ellen S. Ewald, Plaintiff, vs. Royal Norwegian Embassy, Defendant.

Civil No. 11-CV-02116 (SRN/SER) PLAINTIFF’S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT

The above entitled mater came on for trial before the undersigned Judge of the United States District Court, District of Minnesota on April 21- ____, 2014, in Courtroom 7B of the District Court Courthouse, St. Paul, Minnesota. Sheila Engelmeier, Esq., Thomas E. Marshall, Esq., and Susanne J. Fischer, Esq. appeared on behalf of Ellen S. Ewald. Daniel G. Wilczek, Esq., Joel P. Schroeder, Esq. and Sean Somermeyer, Esq. appeared on behalf of the Royal Norwegian Embassy. The Court heard testimony from witnesses, received deposition testimony into evidence, including video-taped witness testimony, and received exhibits from the parties. proceedings herein, the Court orders the following: FINDINGS OF FACT 1. Plaintiff Ellen S. Ewald (hereinafter ―Plaintiff‖ or ―Ewald‖) is a female, Based upon all of the files and

American-born United States citizen, who resided in Norway for more than twenty years. (Ewald.)1 She presently resides in Minneapolis, Minnesota. (Ewald.)

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Name of witness who will support the finding is identified by last name. 1

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2.

The Royal Norwegian Embassy has a presence in the State of Minnesota at

Honorary Norwegian Consulate General, 901 Marquette Avenue South, Suite 2750, Minneapolis, MN 55402 and has consented to the jurisdiction of this Court pursuant to its Agreement with Plaintiff employing Ewald in Minnesota. (J-12.)2 According to the Agreement, Plaintiff‘s employment relationship is ―governed by the laws [where] the Employee is employed.‖ (J-12.) 3. Ewald has outstanding educational credentials and professional experience

in the areas of education and research, networking, and project and business management in an international setting. (J-4.) Ewald specifically possesses degrees in International Relations & Scandinavian Studies and Foreign Studies from the University of Minnesota (graduating summa cum laude), 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. (J-4.) She has extensive

professional experience in both education and business, including board positions in the United States and in Norway. (Ewald; J-4.) Prior to her work with Defendant, Ewald was the Chairman of UnoPhone Norge As/UnoPhone Uganda, Ltd., for five years, the Manager of Business Network Development for IT Fornebo, and Account Manager of Business Alliances and Project Management. (J-4.) In addition, at all times material to this matter, Ewald was fluent in Norwegian (both speaking and writing), had significant networks in the United States and Norwegian business communities, and possessed outstanding business and business development skills. (Ewald; J-4.)
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―P‖ refers to Plaintiff‘s Exhibits and ―J‖ refers to Joint Exhibits.

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4.

Prior to her employment at the Embassy, Ewald was recognized and

received awards for her notable achievements, including recognition as one of ―Norway‘s Top 10 Most Successful International Women‖ in 2004. (Ewald; J-4.) 5. In 2008, Norway‘s Ministry of Foreign Affairs (―MFA‖ and sometimes

―Foreign Ministry‖) created a New Model Consulate, with two new ―expert‖ positions focused on innovation and business development and higher education and research (hereinafter Strommen.) 6. Six Norwegian government entities, branches of the Norwegian ―Business-Development‖ and ―Education-Research‖). (Gandrud;

government (―Stakeholders‖), provided 1.5 million Norwegian Kroner (―NOK‖) for the two positions for a three-year trial period with the possibility of ending or extending the positions. (Johne; P-11; Gandrud; P-4.) Stakeholders were the Research Council of Norway, SINTEF, Innovation Norway, the Norwegian Association of Higher Education Institutions, the Ministry for Education and Research, and the Ministry for Food and Agriculture. (Ewald; Finborud.) The contributions were split evenly between the various Stakeholders and the contributions were to be split equally between the two expert positions. (P-11; P-17.) (Johne; Vibe.) 7. The Stakeholders‘ role was to ―provide guidance and support to the two

experts. . .‖ (Johne; P-11.) 8. On July 3, 2008, Jostein Mykletun, Deputy Director General and

Ambassador at Large, Royal Norwegian Ministry of Foreign Affairs, and the architect of the expert positions posted the final announcement for the Minneapolis Honorary 3
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Counsel positions. Each was described as a full-time, officer-level position: Higher Education and Research Officer (―Education-Research‖), and Innovation and Business Development Officer (―Business-Development‖). (Gandrud; J-2.) 9. The expert positions were designed to work together, as part of a team at

the Minneapolis Honorary Consulate, to assist Norway and Norwegian interests to successfully make inroads into education, research and business in the Midwest. (Ewald; Finborud; Johne; Vibe.) 10. Each position required similar professional experience and qualifications

and noted the importance of effective Norwegian language communication skills. (J-2.) The Education-Research position required an advanced university-level degree, while the Business-Development position required only a university-level degree. (J-2.) Both positions had almost identical responsibilities and duties with the objective to strengthen relations between the Midwest and Norway within a respective focus area: (1) higher education and research, on the one hand, and (2) innovation and business development, on the other. (J-1; J-10.) Both position descriptions noted the importance of effective Norwegian language communication skills. (J-2.) 11. With the exception of the focus area, Defendant‘s postings for the two

positions outlined almost identical responsibilities, including but not limited to: • Work with the 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. Develop contacts between Norwegian and US partners.

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• •

Proactively engage in targeted networking with relevant colleagues and partners in the respective focus area. Facilitate and plan visits to the Midwest by involved and interested Norwegian partners, as well as facilitate workshops and seminars of common interest.

(J-2, J-10.) 12. On July 3, 2008, Mykletun forwarded the links and job descriptions of both

positions to colleagues, including Ewald. (J-2.) Ewald responded to Mykletun, with whom she previously worked on different initiatives. (Ewald; J-2.) 13. On July 4, 2008, Ewald told Mykletun about her interest in the positions

and asked to discuss it with him. (Ewald.) She considered both positions ―exciting‖ and similar, but was most interested in the Education-Research position. (Ewald.) 14. Although having resided in Norway for about 20 years, Ewald seriously

considered the position because she believed it was an opportunity to serve both Norway and the United States, countries she loved. (Ewald.) She also had a personal interest in brain science research, so the position to develop relationships between educational research institutions and businesses in Norway and the United States was very attractive to her. (Ewald.) Ewald had an excellent job, beautiful home, numerous friends, and business associates in an extensive network that she would have to leave if she got the job. (Ewald.) Working at the Minneapolis Honorary Consulate was an opportunity for her to ―shine‖ and use her connections in Norway and in the United States to help both countries and further important research issues both in education and business. (Ewald; Mikalsen.)

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15.

Mykletun invited Ewald to meet at his office in Oslo.

(Ewald.)

He

explained the focus for both of the expert positions was promoting Norwegian interests in business and education, with a close link between the two. (Ewald.) Mykletun further explained the two positions were ―parallel‖ and ―equal‖ and would work as a team. Mykletun said the budget of $1.5 NOK would be divided equally to fund the two positions. (Ewald; Mikalsen; Hansen.) Although Ewald considered herself qualified for both positions, she applied only for the Education-Research position because that position piqued her interest more. (Ewald.) Mykletun‘s representations (as well as the later representations by Gandrud) induced Ewald to accept the position once it was offered to her. (Ewald.) 16. Mykletun later repeated his statements about the expert positions in the

New Model Consulate being designed as equal in compensation and duties. Specifically, he met with Ewald, Marius Hansen and Terje Mikalsen at a breakfast in Oslo, during which Ewald shared what had been happening regarding unequal pay. Mykletun

repeated that when he explained how the Model Consulate would function to the Foreign Ministry, he made it ―very clear‖ that the two expert positions were equal and that they should be compensated equally at $90,000 each. Mykletun also said it is ―ridiculous‖ for anyone at the Embassy, Consulate or Foreign Ministry to be saying anything differently. (Ewald; Hansen; Mikalsen.) 17. On July 7, 2008, Embassy employee, Jan Aage Larsen, referring to their

conversation the previous day with respect to the two expert positions, asked Gandrud ―depending on qualifications and experience, will $60,000-70,000 plus Social Security 6
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and health insurance be in the range in your area for such a position [sic]?‖ (P-6.) (Gandrud.) Gandrud replied that ―your salary range would be attractive and we should expect a good representative response.‖ (P-6.) (Gandrud.) 18. On July 18, 2008, Ewald applied for the Education-Research position. The

search committee for the two positions selected Ewald for a personal interview. (J-4.) 19. Ewald interviewed in Minneapolis, MN for the position of Research and

Higher Education Officer with former Vice President Walter Mondale, Honorary Consul General, Minneapolis; Berit Johne, Science Counselor, Norwegian Embassy Washington DC; Elin Bergithe Rognlie, Minister Counselor for Economic Affairs, Norwegian Embassy Washington DC; and Gary Gandrud, Esq., Honorary Consul, Minneapolis. (Ewald; Gandrud; Mondale; Johne.) 20. During her interview, Gandrud told Ewald the salary range for the two

positions was $40,000 to $70,000 USD and the salaries were ―equal,‖ and they will ―work to get up to the top range[salary]‖ for both. (Ewald; P-68.) The Interview Committee also told her that these positions ―were two parallel positions, and they were putting together a team,‖ under the direction of former Vice President Mondale and Mr. Gandrud in Minneapolis. (Ewald; Gandrud; Johne.) This range is typical for other locally employed Embassy officer-level employees. (Vibe.) Most Embassy employees are female. (Vibe; Johne; Milbury.) Ewald received a very positive referral from

Mykletun. (Johne.) Gandrud‘s statements regarding the two positions being paid equally induced Ewald to accept the position once it was offered.

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21.

Ewald, through her first husband, had previously worked with the

Norwegian Foreign Ministry as a diplomat‘s spouse. (Ewald.) Government employees in Norway are compensated through a system called ―Lonnstrinn‖, where employees are placed at a specific level of compensation for the level of employment. (Ewald; Milbury; Strommen.) Ewald had no reason to believe the Lonnstrinn system did not apply to her as an Embassy employee. (Ewald.) While this applies to all other aspects of Norwegian employment, the Embassy does not follow the Lonnstrinn for locally employed employees. (Milbury; Strommen.) 22. On July 9, 2008, Patricia Manalo, Faegre Director of Human Resources,

provided Gandrud salary range information from a general query of the Salary.com website for two business and two education positions entitled, ―Business Development Manager Jobs,‖ ―Business Development Director Jobs by US Region,‖ ―Institutional Research Director Jobs by US Region‖ and a ―Researcher III-Academic‖ job. (J-3.) (Gandrud.) Manalo reported the compensation for the research position ―ranges from 70K to 79K and the business development positions, from $93[K] to $118[K].‖ Id. Gandrud never shared this information with anyone evaluating candidates for the position nor did he do any analysis of an appropriate salary range for the actual Officer positions. (Gandrud; Johne; Mondale.) 23. The Minneapolis Honorary Consulate Officer positions advertised had

nothing to do with the jobs Ms. Manalo searched. (P-6.) The Education-Research position did not actually perform research; it brought research institutions and businesses together.
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(J-2.)

Likewise, the Business-Development position was not designed to 8

generate business for a corporate entity; instead, it also brought businesses together. (Davidson.) 24. Anders Davidson applied for the Business-Development position on July

25, 2008 and interviewed around the same time as Ewald. (J-5.) Davidson, unlike Ewald, did not speak or write Norwegian; in fact, he had never even visited Norway. (Davidson.) Gandrud did not do any reference-checking himself. (Gandrud.) Davidson had never worked on issues dealing with Norwegian businesses except as they might concern 3M subsidiaries, where he worked. (Davidson.) When told of the salary range, Davidson made no negative comment. (Gandrud.) 25. At the beginning of September, Gandrud called Davidson and offered him a

salary of $60,000. (Davidson; Gandrud.) Davidson responded, ―this would be a big pay cut for me, that we could not do it financially as a family.‖ (Davidson; Mondale.) Davidson expressed interest in the job for $60,000 for a three-day work week. (Gandrud.) Davidson testified ―I was not under the impression that the salary—the dollar amount was negotiable. I thought that that was,---I was kind of under the impression that it might have been a pretty fixed amount.‖ (Davidson). 26. On September 4, 2008, Gandrud requested Johne and Rognlie recommend

Ewald based on ―clear and obvious consensus on the Education-Research position‖ to the Stakeholders that day so the decision could be made, and Mondale could make the announcement while in Oslo, Norway. (P-7.) Johne responded to Gandrud and

Ambassador Wegger Strommen that the report on the selection and ranking of candidates would be completed that day. (P-7.)
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Johne directed, ―if the Advisory Board approves 9

Friday, [9/10/08] then Mondale may announce the two names, IF THEY have been informed.‖ (P-7.) 27. In response, Gandrud stated: 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 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. HCG 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. (P-7; Gandrud.) 28. Gandrud considered the family issues important to the position. (Gandrud.)

Johne is unaware of any other reason Davidson received more money. (Johne.) 29. Prior to accepting her employment, Ewald had a successful private business

career in Norway spanning more than a decade working as an executive for various corporations. Ewald operated a company called UnoPhone Norge As/UnoPhone Uganda, Ltd. which provides telephone services. Ewald‘s salary at her prior employment

exceeded $100,000 and, with benefits ranged between $140,000 and $170,000. (Ewald.) Ewald also had two daughters under the age of twenty-six, and a domestic partner (who she later married) who was moving to Minnesota with her. (Ewald.) Gandrud made no inquiry of Ewald‘s prior salary or family situation. (Gandrud; Vibe; Mondale.) 30. On September 5, 2008, Johne told the Stakeholders and many others,

including Gandrud and Mondale, and Morton Aasland, the Norwegian Minister of North America, the hiring committee with ―full consensus‖ recommended Ewald and Davidson 10
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for the two expert positions, stating that ―both being clear first choice candidates, who would constitute an excellent team.‖ (P-17.) 31. Johne herself made no assessments regarding salary and relied on what she

was told by Gandrud. (Johne.) In her report, Johne set forth ―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 (emphasis added); Johne.) In her example, 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; Gandrud.) 32. Shortly thereafter, Gandrud copied Davidson on correspondence to Oslo

but did not copy Ewald. (Gandrud.) Although Davidson did not request it, Gandrud told Davidson, ―Embassy, Mondale and I joined in asking [the Stakeholders] that the salary be more reflective of the market.‖ ―negotiations.‖ (Gandrud.) 33. On September 8, 2008, Gandrud forwarded Johne‘s email with salary (J-7) Gandrud would not label the communication

calculations again only to Davidson, noting: ―FYI: Deeply confidential…you see our process . . . you should note that the salary is ‗in play.‘‖ (P-8.) Davidson responded ―Thanks for keeping me abreast of the process. I really appreciate the consideration of the salary.‖ (J-8.)

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34.

On September 10, 2008 Ewald‘s hiring was announced at a reception with

Mondale in Norway. (J-9; Mondale.) On the same day, the Stakeholders met for the first time in Oslo. (P-11.) Liv Morch Finborud from the MFA was elected chair of the group. (P-11.) Mondale reported they had found ―two excellent candidates for the expert

positions.‖ (P-11.) Mondale praised Ewald‘s selection and spoke highly of her to Stakeholders. Finborud testified that Mondale informed the group they ―would have to pay more to a more experienced person from a private business life.‖ (Finborud.) In the minutes of the meeting, it was reported that: Some 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; Johne; Strommen.) The funds were never split equally between Ewald and Davidson. (Vibe.) 35. On September 11, 2008, Morten Aasland, the Norwegian Minister of North

America, updated Gandrud on the steering group meeting which Aasland attended. (P17.) Aasland specifically stated, ―[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; Gandrud; Johne.) Gandrud responded to Aasland that ―both candidates have accepted our offer.‖ (P-17.) Gandrud made no mention of the salaries for the two positions. (P-17.) Gandrud then told Davidson the Stakeholders were finalizing the budget and ―you [Davidson] will be pleased with the salary adjustment.‖ (J-8.) 12
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36.

On September 11, 2008, Ewald updated Gandrud on the reception and her

meetings with Mondale and several Stakeholders. (J-9.) Gandrud told Ewald he received a ―glowing report from the Foreign Ministry‖ and the Stakeholders were ―very pleased with the process and [Ewald‘s] selection.‖ (J-9; Gandrud.) Although he did not mention her salary, 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.) Gandrud updated Davidson on the budget process and told him, ―expect to hear a report tomorrow.‖ (J-8.) 37. On September 12, 2008, Gandrud called and offered Davidson the

Business-Development position, which Davidson accepted. (Ex. 94; Gandrud.) On the same day via email Gandrud ―officially‖ offered Ewald the Education-Research position. (P-12.) Gandrud advised Ewald he preferred to discuss the ―economic details of the offer‖ in a phone call rather than by e-mail. (Id.) On September 13, 2008, Gandrud and Ewald discussed the terms of the employment offer. (Gandrud.) Ewald testified: I remember [Gandrud] saying you will be really pleased. That he worked – that they worked really hard. For both positions they were able to get the top range. And this was really positive for the consulate because they really wanted to get good people in. (Ewald.) Gandrud also told Ewald ―I‘m happy to report or you will be pleased to know that we were able to get the highest possible salary.‖ (Ewald.) Gandrud offered Ewald a salary of $70,000 and said there were health care and pension benefits and parking. (Ewald; Gandrud.) Ewald accepted the position. (Gandrud.) Strommen said he didn‘t ask how they came up with the numbers, he just signed off. (Strommen.) 13
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38.

On September 13, 2008, Gandrud reported to Johne that he had a ―very

long conversation today and [Ewald] accepts our offer, $70M+pension+health.‖ (P-12.) Gandrud noted ―now we have both on board!‖ (P-12.) Johne responded, ―the embassy would issue contracts‖ as they ―had a meeting the day before on details!‖ (P-12.) Johne asked ―Did you offer 100 + health + pension to Anderson? And he accepted?‖ (P-12.) Gandrud responded, ―Anders accepted‖ the day before. (P-12; Gandrud.) 39. On September 16, 2008, Gandrud emailed Kathy Tunheim, a public

relations consultant and Norwegian-American who volunteered to do a press release for the Consulate, to provide her information on the selection of the candidates. (Gandrud; P-16.) Tunheim asked Gandrud if both positions are full-time and Gandrud responded, ―Both full time [off record $100,000+ positions].‖ (Id.) With his salary, Davidson was the highest paid local employee of the Embassy in the United States. (Wemberg; Vibe.) 40. Earlier on September 16, 2008, Gandrud emailed the Embassy the specific

salary and benefit information for the two positions to allow the Embassy to finalize the contracts. (P-17.) On September 18, 2008, Gandrud advised Davidson that ―Embassy is finalizing the Contract-I have reviewed it-you will like it.‖ (P-18.) Gandrud also

requested the date of birth for Davidson, his wife and children for insurance purposes but made no similar request of Ewald. (P-18.) 41. Ewald executed an Employment Agreement on November 4, 2008, setting

forth her position description and title, salary of $70,000 USD, a pension of $7,000, plus holidays, working hours, and other various terms. (J-12.) Ewald was paid an annual

salary of $70,000 during the course of her employment. She also received a pension 14
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contribution of ten percent (10%) of her salary, which was $7,000.00 per year. (Ewald; J42.) 42. Davidson received and executed a similar employment agreement on

October 14, 2008 with the only difference being a salary of $100,000.00 and a pension of $10,000.00. (J-11,P-122.) Davidson was paid an annual salary of $100,000 during the course of his employment, a contribution to a pension account of $10,000.00 each year. (Davidson.) Davidson also received uninterrupted health benefits for himself, his spouse and his two children throughout his employment. (Davidson.) 43. Both contracts contained the identical language regarding ―health

insurance.‖ (J-11; J-12.) 44. Gandrud denies setting the salaries of Ewald and Davidson although he is

the only source of the specific salary information and Johne said Gandrud decided to pay Davidson so much more money than Ewald (Ewald). Gandrud told Ewald that the Embassy had set her salary. (Ewald.) In contrast, Johne, a leader at the Embassy said she had nothing to do with setting salaries. (Johne.) According to Finborud, the

Stakeholders did not set the salaries. (Finborud.) Finborud blames Mondale for setting Davidson‘s salary higher than Ewald‘s salary. (Finborud.) Mondale did not present any specific salary numbers to anyone. (Mondale.) 45. On about October 15, 2008, Ewald moved from Norway to Minneapolis

with her domestic partner, Terje Mikalsen, at considerable expense and inconvenience to herself and her family. (Ewald; Mikalsen.) Ewald had no intent to move to Minneapolis, but did so to take the job at the Honorary Consulate. (Ewald; Mikalsen.) 15
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46.

On November 5, 2008, Ewald emailed the Embassy inquiring how to add

her children and partner to the health plan, noting she experienced difficulty adding them to the plan while Davidson had no difficulty at all. (P-22.) An Embassy benefits employee responded, ―I have never received any information that they should be added to the plan.‖ (Id.) Ewald questioned why her family was not covered when Davidson‘s wife and two small children were covered. (Gandrud.) (Id.) The employee explained

Davidson‘s children were under the age of 18 and his wife was supported by him. (Id.) He also advised Ewald her partner was a Norwegian citizen so was not covered. (P-55.) Ewald complained about the benefits differential between she and Davidson and noted that insurance laws required coverage for children under 25. (P-55.) (Ewald.) 47. On November 6, 2008, Embassy changed its position, noting the Embassy

would provide health care coverage for Ewald‘s youngest daughter but only during her first year of college and that it would cover Mikalsen. (Ewald.) Embassy provided Ewald lesser benefits than her male peer. (Ewald; Davidson.) 48. On March 19, 2009, Embassy changed its position once again and Larsen

notified Ewald via email that Mikalsen‘s health insurance had been cancelled and would expire. (P-37.) Mikalsen‘s coverage was cancelled effective April 1, 2009, because Mikalsen allegedly had ―independent income.‖ (Id.) Though this determination was made on February 25, 2009, Ewald was not told until March 19, 2009. (Id.) Ewald

again objected to the inequitable treatment because the spouse of Davidson was covered although Davidson‘s spouse worked outside the home. (P-51; Vibe.)

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49. 2.)

The Officer Positions‘ duties were set forth in the job postings. (Johne; J-

Stakeholders set priorities and expected Ewald to develop a ―strong institution

network between Norway and U.S.A. on the education and research side.‖ (Finborud.) Similarly, the Stakeholders expected Davidson to ―also promote and get Norwegian business into the Midwest and connect the ties.‖ (Finborud.) Both positions were accountable to the Stakeholders. (Finborud.) 50. The ―positions work as a team and there is some overlapping with (Finborud.) Ewald‘s first

institutions when it comes to research and technology.‖

priority, set by Stakeholders ―was to network, to build--build up connections, cooperations between the various research institutions and to other academic institutions.‖ (Finborud.) Ewald successfully established these connections. (Ewald.) Davidson was to do the same networking to facilitate connections between businesses. (Davidson.) 51. Testimony and exhibits in the record demonstrate that the job duties and

tasks assigned to each role (Business-Development, on the one hand and EducationResearch, on the other) were substantially the same. (Ewald; Davidson.) 52. In early 2009, both Ewald and Davidson began working on vision

statements for Stakeholders containing their respective goals, objectives and anticipated activities, as well as proposed budgets for the coming year. (Ewald.) On February 18, 2009, Gandrud emailed Gary Smaby, an outside consultant, asking him to review Davidson‘s vision statement and ―coach him.‖ (P-76.)

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53.

During her interview and after, the Consuls encouraged Ewald to work on

student mobility. (Gandrud; Mondale; Ewald; J-12; P-38.) 54. As requested by Stakeholders, however, Ewald redirected her focus more

towards building relationships between the Norwegian and U.S. institutions, and less on student mobility. (Finborud.) Ewald worked on the CeRTA project, which was

―definitely‖ the ―kind of model that [Stakeholders] like where Norwegian and American institutions were cooperating, getting together on projects.‖ (Finborud.) CeRTA was a collaboration for education and business, using Norway‘s vast biobank information for medicine and research. (Ewald; Mikalsen.) 55. On May 15, 2009, Gandrud sent Strommen and Mondale the vision

statements (P-41), stating, "it very important that changes and comments be directed to [he and Mondale] rather than directly to Ellen and Anders" ... "[w]e are in real danger of creating confusion and resentment should they hear from different and even competing 'supervisors'.‖ (P-41.) One stakeholder, Terje Emblem, wrote, ―The most striking feature of the two documents submitted, is that they are very different in form and content. We have understood that the two positions should constitute a team, with closely related activities and businesses, and internally consistent priorities etc. The documents do not bear witness to this.‖ (Id.) Rognlie provided Gandrud with a summary of Stakeholders‘ feedback regarding comments on the vision statements which included: The two positions should work as a team. A common vision should be reflected in the Statements. Their work is overlapping regarding researchbased innovation and institutional contact.

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-The Stakeholders have contributed to the budget as a whole and not to one specific position. ... in working as a team the positions could overlap and should support each other. (J-23; Johne.) Embassy directed these two positions were intended to work as a team, rather than interfacing with the Stakeholders individually. (J-23.) The record and the documents in the record demonstrate the two experts positions were supposed to work together as part of a team. 56. Gandrud met with the Stakeholders on June 29, 2009, to discuss the

Minneapolis Consulate. (P-43.) Stakeholders were positive about the work so far. (P43.) Although they agreed some student exchange is important, they stressed Ewald‘s priority should be on ―research cooperation on a higher level,‖ ―more formal agreements between institutions,‖ and ―collaboration between universities.‖ (P-43; Johne.) 57. Gandrud communicated with Finborud about Ewald emphasizing too much

on student mobility. (P-52.) Gandrud explained, ―we may have overstated this fact in our discussions‖ with Ewald ―when she was first hired for her present position‖ (P-52; Gandrud.) and ―you should know that student exchanges were not the major part of Ellen Ewald‘s duties this past year.‖ (P-52.) Gandrud identified numerous examples where Ewald facilitated finding partners, established relationships and exchanges between institutions, and was involved in Nobel Peace Prize Forum. (Id.) She worked to develop relationships with not only educational institutions but with business entities as well. (Id.)

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58.

Christina Carlton was offered a position with the Consulate at a salary of

$45,000 annually. (Carleton Ex. 41.) When her contract arrived, the offered salary was reduced by $10,000, to $35,000. (Carleton; P-56.) She accepted the salary and had no opportunity to negotiate her position. (Carleton.) 59. In 2009, Urd Milbury received an offer of $49,000 to work as an officer in

the Embassy in Washington, D.C. When her contract arrived, it was reduced by $6,000. She accepted the salary and had no opportunity to negotiate her position. Unlike

Davidson, none of Milbury‘s discussions about her concerns with respect to the salary caused the Embassy to increase Milbury‘s salary to more accurately align with h er expectations. Milbury learned that she was paid thousands less than her male co-workers and that most women employees were paid less and treated differently than males by having to do menial tasks in addition to their more important assigned work duties. (Milbury.) 60. On August 5, 2009, having received no response regarding family health

insurance coverage, Ewald requested a copy of the policy relied on to deny coverage, but nothing was provided. (Ewald.) Ewald also learned from analyzing an internal budget report that Embassy paid Davidson a six-figure salary, while she was paid $70,000. Ewald discussed these discrepancies with Gandrud. (Gandrud.) This information

surprised Ewald because during the hiring process Embassy told her the salary for the two positions were the same--$70,000 in annual salary, plus benefits. In the email addressing insurance, Ewald asked Larsen to confirm the salary discrepancy between she and Davidson. (P-49.) On August 7, 2009, Larsen confirmed the numbers were correct, 20
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and on health insurance stated ―there is no further reference (P-50.) Gandrud why Davidson‘s salary was so much greater than hers. (Gandrud.) 61.

Ewald asked

After repeatedly asking questions and sending follow-up communications

about her health insurance without getting a specific response, Ewald wrote again to Larsen on September 23, 2009 about the pay discrepancy (P-60.) Larsen responded that he had to consult others to answer her inquiries. (P-56.) 62. At around the same time, Gandrud and Mondale had been working on a

draft of a letter to Strommen regarding the salary difference between the two expert positions. (Gandrud; Mondale.) On September 23, 2009, Gandrud emailed Mondale a draft, which was intended to address the following issues: (1) the budget shortfall, stating ―they agreed to $500 per month, but we have not seen it‖; (2) Christina‘s salary, stating ―both performance based, expanded duties and clearing up the 35M–45M discrepancy‖; and (3) Ellen‘s salary, stating ―her 70M and Anders 110M is too big a spread…‖ ( P-58; Gandrud.) The letter states: ―there is too big a discrepancy between the salaries of Ellen and Anders Davidson. We recognize that there is a different job market demand between education and business and this is reflected in the differential. But that differential is too large ($70,000 compared to $110,000). Once again, we understood that this would be addressed in the 2010 budget. Norway is an acknowledged leader in gender equity and since these two people work closely and since both work hard with exemplary results and dedication, we find the differential unjust and embarrassing.‖ (P-56; Gandrud; Strommen; Mondale.) 63. Gandrud handed the letter to Strommen. (Gandrud.) Strommen looked at it

and handed it right back without keeping it himself and said he considered it a ―budget issue.‖ (Gandrud; Strommen.) When Mondale learned this, his comment was ―bad.‖ 21
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(Mondale.) Gandrud did not approach any stakeholder about the issue. (Gandrud .) The Embassy did nothing with the request. (Gandrud.) Strommen did not investigate

whether Ewald‘s salary was ―unjust and embarrassing.‖ (Strommen.) 64. Receiving no further response from Larsen, Ewald requested a response on

October 23, 2009, November 4, 2009 and again on November 16, 2009, with a copy to Strommen. (P-62, P-63, P-65.) 65. On November 6, 2009, Finborud received a letter from Strommen, which

she forwarded to the Stakeholders, subject line is "Request for extra funds for HCG Minneapolis" and references a letter attached from Embassy for additional funds needed for the two positions in Minneapolis. (J-26.) Finborud reminded the group of their 3/13/09 meeting with Ewald when they noted the dollar's reduced value must not reduce the new employees' productivity, and Stakeholders would come up with a solution. (Id.) Finborud noted some members of Stakeholders have covered some of Ewald and Davidson's travel expenses and recommended the Stakeholders cover the expenses as a whole, and come up with some ideas about how to handle expenses for 2010. (Id.) Svein Berg of Innovation Norway said he understood that the six partners are being asked to cover their portion of the increased costs (prorated); Berg confirms that IN will increase their contribution for 2010 by 25000 NOK. (Id.) 66. Finally on November 18, 2009, Strommen responded to Ewald addressing

the salary difference and insurance coverage. (J-28.) In his letter, Strommen wrote: The salary levels defined in last year‘s negotiations with you and your colleague were based on what was, in consultation with the funders in Norway, considered necessary to recruit the right people 22
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to two very different jobs. I believe this was explained to you in the course of the negotiations… Your salary is competitive compared to other locally-employed staff at our Embassy. (J-28.) 67. In his November 18th letter, Strommen also advised Ewald that the

insurance coverage for her children and partner would continue, but she would have to pay for the supplemental coverage because her partner was not financially dependent on her and coverage was only for children under the age of 18. (J-28.) He stated no changes to salary would be made. (J-35; J-28.) 68. An email exchange on December 3, 2009 between Gandrud and Ewald

discussed a prospective trip to Norway for Ewald. Gandrud stated, ―HCG Mondale and I are in agreement that we think that you should take this time for travel and that you have set up worthwhile meetings. You do need to seek prior approval from either Embassy or one or more of the steering committee (Stakeholders) for travel expense reimbursement. As you know, we do not control that budget and those expenses need to be approved by them.‖ (J-27; Gandrud.) 69. Ewald wrote a lengthy letter to Strommen describing the discrimination she

had experienced on December 30, 2009, including unequal pay, health insurance, travel expenses and pension. (P-68.) 70. Ewald rebutted Strommen‘s response on December 30, 2009. (P-68.)

Ewald wrote that, contrary to Strommen‘s information, no one had explained during the hiring process that her position was different than Davidson‘s position. (P-68.) Ewald stated the explicit representations in the interview process included the two positions were parallel, would work closely as a team, had similar responsibilities and objectives, 23
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shared the same Stakeholders, and the experience and qualifications for the two positions were similar. (P-68.) Ewald also noted that knowledge of the Norwegian language and relevant activities were required for both positions (Ewald has excellent Norwegianlanguage skills and extensive and significant experience in Norway; Davidson did not) and, during the hiring interview, she was told the salaries were both at $70,000–the top of the range. (P-68.) Ewald also stated Davidson‘s higher salary significantly impacted her pension, resulting in yet another inequity. (P-68.) Ewald also asked why she was denied coverage for travel expenses while Davidson had been fully reimbursed. Accordingly, Ewald requested an explanation for the disparity between her salary, pension, health care and travel expenditures. (P-68.) 71. Shortly after Ewald sent her letter to Strommen, Johne called Ewald to

discuss her concerns and Ewald asked whether Johne, as a woman, believed that such inequitable treatment was fair. (Ewald.) Johne replied, ―that is the way it is‖ and noted Ewald ―should accept it.‖ (Johne.) When Ewald asked why she was told the positions were paid the same, and why there had not been open communication about the pay and benefit difference, Johne said it was Gandrud‘s decision to pay Davidson so much more money than Ewald. (Johne; Ewald.) 72. After seeing Ewald‘s December 30th communication to Strommen,

Gandrud wrote to Strommen and others criticizing Ewald, even stating the issues were not her ―business.‖ (J-31; Gandrud.) Strommen advised him to ―sleep on it.‖ (J-30; Gandrud.) Strommen did not report this correspondence to his supervisors. (Strommen.)

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73.

In January 2010, Gandrud invited Ewald to lunch. (Ewald; Gandrud.)

Gandrud said he knew of the letter Ewald sent to Strommen about unequal treatment. (Id.) In stark contrast to the representations of Johne, Gandrud claimed he had nothing to do with setting the salaries and ―Embassy did that.‖ (Id.) Gandrud attempted to explain the disparity in pay by giving an example that the president of St. Thomas would not have the same salary as an executive at Target. (Ewald; Gandrud.) He told Ewald she should not expect to receive the same salary since she was ―in education‖ compared to ―someone in business.‖ (Id.) 74. During this lunch meeting, Gandrud asked whether Ewald got along with

Davidson. She stated she had no problems getting along with Davidson, (Gandrud.) noting the issue was ―equal pay for equal work.‖ (Ewald.) In response, Gandrud also stated that she should ―nip this in the bud‖ or otherwise there could be ―consequences.‖ (Ewald; Gandrud.) Gandrud advised Ewald to send an email to Strommen saying she and Davidson worked well together. (Ewald; Gandrud.) As a result of Gandrud‘s statements, Ewald felt threatened, and asked Gandrud if his statements were a threat. (Ewald.) Gandrud responded ―no‖, but she could not expect things to continue on as they were if she continued to raise issues, and someone would ―likely have to go.‖ (Ewald; Gandrud.) Ewald re-emphasized that the inequitable compensation package she received compared to Davidson was unfair and it was discrimination based on gender. (Ewald.) Gandrud responded angrily and pounded his fist on the table to stop Ewald from continuing the discussion. (Ewald; Gandrud.)

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75.

Gandrud emailed Strommen and noted ―she (Ewald) sees no problem with

Anders but says she wants answers….will not accept that the job market has different compensation levels for education and business…there were mixed messages on pension/health insurance.‖ (P-69) 76. On January 4, 2010, Finborud advised Strommen and numerous others that (P-70;

Ewald complained to her about the salary difference and ―discrimination.‖

Finborud.) Other than advise Ewald to tell the Embassy, and tell Stakeholders of Ewald‘s complaints, Finborud did nothing. (Finborud.) 77. On January 11, 2010, Johan Vibe, Deputy Chief of Mission for Embassy,

emailed the Foreign Ministry: ―For the Ministry‘s information find the submitted enclosed copy of a letter dated 18/Nov/09 the Ambassador‘s letter to Ellen Sue Ewald at the Honorary Consulate General in Minneapolis and her reply of 12/30/09. The Embassy and the Consulate General's management have had frequent discussions about dealing with these personnel questions and Consul Gandrud had a conversation with Ellen Sue Ewald the 5th of this month (Jan), where she toned down the dissatisfaction she expresses in her letter. The current regulations and salary policy do not permit meeting her wishes about health coverage for her family or significant increase in salary. (J-32.) 78. On January 6, 2010, Finborud informed Johne, Rognlie, Vibe, Strommen

and others that Ewald would be in Norway and meet with the Stakeholders on February 2, 2010. (P-70.) In the same communication, Finborud advised the Stakeholders of Ewald‘s gender discrimination complaints. 79. On January 28, 2010, Vibe, ―has our girlfriend finally received an answer

to her travel expenses (she asked for about 50% coverage on one of them.)‖ (P-74; emphasis added). 26
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80.

On February 12, 2010, Ewald asks Strommen to reply to her December 30,

2009 complaint letter. (P-77.) That same day Strommen emails others as follows: ―We must send her asap, as we have talked about, the legal authorities, the legal clarifications for why it is as it is . . . Be sure that the substance of what we write is as MFA the body of law.‖ (P-78.) 81. On March 9, 2010, the Embassy finalized coverage for Mikalsen:

―[w]e will have to cover the health insurance. The current regulations were put into effect in 2007. I do not understand completely why there was a requirement of ‗spousal support‘ when Ellen was hired, but it was most likely a routine grounded in the former guidelines.‖ (P-84; Strommen; Vibe.) Vibe added, ―[t]he Embassy (Embassy‘s budget) is not going to cover this with one cent.‖ (Id.; Vibe.) 82. On March 11, 2010, Vibe responded to Ewald's December 30, 2009

correspondence to Strommen. (J-38.) Contrary to prior representations, Vibe wrote, ―salaries for locally-employed staff‖ are set ―according to the local salary levels for similar positions.‖ (J-38.) He added that individual negotiations played a part in the salaries, and that someone with a ―corporate background‖ should receive a higher salary, even though both positions were both ―director‖ or ―officer‖ level. (J-38) Initially, had she known of the additional pay for the Business-Development role, Ewald may have applied for that role since, as a former CEO of an international business, with marketing and business development experience, she had the experience qualifying her for that position. (J-4; P-100.)

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83.

On April 20, 2010, Finborud widely distributed her description of Ewald as

a bad or faulty hire. (P-93.) (Johne.) She also stated it was ―regrettable that the y [Ewald and Davidson] have serious cooperation problems.‖) (Finborud; P-93; Vibe.) Although Stakeholders were supposed to do an evaluation of the positions before the expiration of the three-year period, they discussed not extending Ewald‘s contract. (Finborud; P-93.) Johne copied persons interested in CeRTA on emails suggesting that Ewald had missed deadlines (when, in fact, that was untrue). When corrected, the information was not passed on to those misled about Ewald. (P-94; Johne.) Ewald was criticized for desiring to correct falsehoods. (P-94.) 84. Similarly, in May 2010, Finborud widely distributed her report labeling

Ewald as a bad hire. (Finborud.) As Gandrud testified, Ewald ―didn‘t have issues of performance, she had issues of happiness.‖ (Gandrud.) 85. Davidson‘s performance, on the other hand, was thoroughly criticized by

the businesses he was to support in their U.S.-Norway networking. (Ewald; Nash; Mueller; Sorensen). Gandrud and Embassy received many complaints about poor service from Davidson and the refusal of many businesses to work with him. (Id.,Exs. 50,5256,60-61,126,199; Gandrud; Strommen; Vibe; P-81; P-82; P-83; P-85; P-88; P-95; P-99; P-109.) Davidson even acted as CEO of a business while working for Embassy, (Gandrud; P-147.) Yet Davidson

something expressly forbidden by his contract.

received extra travel benefits from the Stakeholders and Vibe even wanted to extend his position. (Davidson.)

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86.

Ewald personally talked to Strommen on or about June 23, 2010. (Ewald.)

He said that he understood her frustration and implied that the situation would be rectified. (Id.) In contrast to the representations by Strommen, the inequitable pay and benefits continued. (Ewald.) 87. On June 24, 2010, Ewald responded to Larsen‘s previous correspondence

and emailed Strommen again complaining about the inequitable compensation. (P-100; Vibe.) Ewald requested the unfair treatment stop, a written apology, and a solution to address inequitable treatment in the work environment, a policy which the Norwegian government has endorsed publicly. communication. (Id.) 88. In September 2010, Vibe, Elisabeth Wemberg and Lars Henie from (Ewald; Wemberg; Vibe.) This meeting was not to (Id.) Ewald never received a response to this

Embassy interviewed Ewald. investigate her complaints.

(Wemberg; Vibe.) They led her to believe that various

―solutions‖ were being considered. (Ewald; Wemberg.) For example, when Ewald said she had heard that her position was going to be cut, Wemberg confirmed that was being considered. (Id.) They also told Ewald the travel budget had been exhausted and there would be no more funding for travel, but suggested that Science Week would be funded. (Ewald.) 89. Neither the Embassy nor the Consulate ever investigated Ewald‘s

complaints about differential treatment (including pay and benefits) based on gender. (Finborud; Johne; Strommen; Wemberg; Vibe.)

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90.

Ewald was not the only female with a salary differential -- as noted in the

Consuls September 23, 2009 letter, Christina Carleton, although promised a greater salary, received ten thousand less than offered. (Gandrud; Milbury; Carleton; P-56; Wemberg.) Urd Milbury, locally-employed in Washington, DC, also was promised a salary greater than she received when she signed a contract. (Milbury.) Milbury was paid thousands less than her male counterpart, who like Davidson, did not speak or write Norwegian. (Milbury.) After five years and cost of living raises, Milbury was finally paid what her male counterpart was making the day she began her employment. (Milbury.) Milbury began a union for locally-employed Embassy workers and has

received reports of similar inequities throughout the Norwegian Foreign Service. (Milbury; Wemberg.) Defendant refuses to bargain with the union. (Milbury.) Those who complain receive poor treatment in response. (Milbury.) 91. Following communications in early 2010 that Ewald was a bad hire, the

Stakeholders formally decided to end Ewald‘s position without an evaluation. (Finborud.) Other than a general feeling that Stakeholders ―were not happy‖ with Ewald, Finborud was not aware of any specific complaints about Ewald‘s performance. (Finborud.) Stakeholders never held a meeting again. (Finborud.) 92. The Embassy did not permit Ewald to participate in planning and

organization of the 2010 Science Week, nor even asked Ewald for any meaningful suggestions. (Ewald.) Although she was instrumental in the success of the 2009 Science Week, she was denied travel expenses but attended Science Week at her own personal expense, although Davidson got funding to go. (P-11.) 30
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93.

When Ewald requested an explanation for denying travel funding for 2010

Science Week, she was told she had no ―professional reason‖ to be at Science Week. ( P104.) Ewald‘s job description, however, specifically identifies Science Week as part of her job responsibilities, necessary to facilitate the meetings and communications, and contribute ideas about how collaborations between the Midwestern U.S. and Norway might work. (J-12; Johne.) These activities were specifically what Ewald had been doing. 94. Despite having to pay for travel herself, Ewald participated in the 2010

Science Week, since a no-show would negatively impact her professional reputation and she had prepared and organized several meetings at the event. (Ewald) Ewald facilitated meetings, including meetings between the leadership team from the Mayo Clinic Innovation Scholars program and the Universities of Tromsø, Bergen, KD and Oslo. (Ewald; P-104.) 95. She assisted and accompanied the leadership of the UiT delegation to a

meeting with key people at the University of North Dakota, University of Minnesota and Macalester College. (Ewald.) She received positive feedback and many thanks for her efforts and hard work related to these meetings. (Ewald.) 96. Ewald organized several meetings with key U.S. institutions and

Norwegian Universities, including Universities of Bergen, Tromsø, Trondheim, together with the heads of the Mayo Innovation Scholar Program. While at the conference, she made introductions to the Norwegian Minister of Research and Education. Despite performing her work at Science Week 2010 without any support from Defendant, she 31
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received very positive feedback from the participants in the meetings she arranged. The President of the University of Tromso, Dr. Jarle Aarbakke and Pro Rector for Research & Development, Dr. Curt Rice told Embassy Science Counselor Lars Aukrust, that they were grateful to Ewald for her help and President Aarbakke reported she did a ―fantastic job.‖ Following Science Week 2010, the University of Tromsø held discussions to establish institutional agreements in the Midwest with the University of Minnesota, Augsburg College, Macalester College and the University of North Dakota in Grand Forks among others. Ewald facilitated in organizing and participated in those meetings. (Ewald.) 97. On October 11, 2010, Ewald objected to Wemberg about the denial of

Science Week travel expenses noting, even though it is not part of his job duties, Davidson attended the 2010 Science Week and his expenses were reimbursed by one of Stakeholders, Innovation Norway. (Ewald; P-104; Davidson.) When Ewald pointed this out, she was told that the Stakeholders paid for Mr. Davidson‘s travel, not the Embassy. (Ewald; P-104.) 98. Since she received no response to her October 11, 2010 communication to

Wemberg regarding travel funding, Ewald sent another email outlining her situation on December 12, 2010. (P-104) In response, Vibe stated Ewald failed to follow travel request procedures and her submission requesting reimbursement and reconsideration amounted to ―insubordination.‖ (P-104; Gandrud; Wemberg; Vibe.) Vibe further stated ―Embassy has reviewed the other issues that [Ewald] has raised and while we respectfully

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disagree with your position, we do not think that there is any value in discussing them further.‖ (Id.) 99. In early 2011, Gandrud visited colleges to meet with university leadership

and students without Ewald‘s knowledge. Ewald had previously developed relationships with people at these institutions, which was an integral part of her job. (Ewald.) When she complained to Gandrud about his exclusion of her, Gandrud bristled noting that he did not need to inform her and that it was his job to make such visits. (Ewald.) Ewald was embarrassed when representatives at those institutions mentioned that Gandrud was there, yet she was unaware of such visits. (Ewald.) 100. Davidson continued getting his expenses paid by Embassy and Innovation

Norway while Ewald‘s were denied. (P-130; P-108; P-111; P-112; P-132; P-135; Vibe.) Wemberg questioned Vibe about the appropriateness of granting Davidson‘s travel while denying Ewald. (Wemberg.) 101. Ewald learned from Carlton that Mr. Davidson was operating a separate

company, which is not allowed by Embassy‘s policies or Davidson‘s Employment Contract. (Ewald.) When she discussed it with Mr. Gandrud, Mr. Gandrud said that it would be addressed. (Id.) Throughout his employment at Embassy, Davidson continued to have involvement in this separate company. (Ewald.) In fact, Davidson, on his LinkedIn page describes his Embassy work as a ―consultant,‖ secondary to his work as CEO of his other company. (P-147.) 102. On July 2011, Ewald was officially notified that her job would not be

renewed at the end of the three year term. (P-133.) 33
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103.

Ewald paid $15,368 for health insurance premiums for her daughters3 for

the period September 2009 to September 2011, while Davidson‘s children were covered by the Embassy during his entire employment. Ewald paid 12 months of insurance premium of $6,455 for her partner/husband, that was finally reimbursed but without interest. 104. Ewald personally incurred expenses in the amount of $2,362 to go to

Science Week in 2010, which was part of her job. The Embassy denied reimbursement for these expenses when Ewald submitted them. (Ewald; P-151.) 105. Ewald also incurred moving costs and related expenses as a result of the

transition from Norway to Minnesota, as follows: a. Airfare between Norway to USA for interview, and related to moving including looking for housing ($6,030); b. Expenses to set up new home in Minneapolis ($31,000); c. Transportation expenses during transition period ($2,975-automobile); d. Maintaining home (mortgage and expenses) in Norway for six months ($36,180), until it was rented. (Ewald; Mikalsen) 106. The Embassy continued to criticize Ewald and her efforts to promote

Norway even after her employment ended. For example, it refused to support Norwegian interests in a brain science conference coordinated by Ewald after she left Embassy. (P138.) The Embassy also inhibited the business interests of her and her husband‘s

company, Tysvar. (Ewald; Mikalsen; Nash.) Word spread that companies should not be involved with Tysvar. (Nash; Ewald, Mikalsen.) Ewald and Mikalsen were excluded

3

Embassy paid the insurance premium for one of Ewald‘s daughters for one year. 34

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from special events and conferences involving Norwegian dignitaries and business people, including: a. Dinner for Amb. Strommen in Minneapolis, July 2013 b. Reception sponsored by the Consulate for the Norwegian-American Chamber of Commerce, October 25, 2013. (Ewald; Mikalsen.) 107. Members of the Norwegian-American business community reported ―some

Norwegians have reported an inability to work with Tysvar due to Ewald‘s lawsuit.‖ (Nash.) 108. The Embassy continues to exclude Ewald on communications regarding a

project it knows she is an integral part of with International Telemark. (Ewald; P-143.) 109. Ewald suffered humiliation and mental anguish as a result of Embassy‘s

mistreatment based on gender during and after her employment. (Ewald; Mikalsen.) Ewald testified that she now worries how she is perceived by others in the Midwest and in Norway and particularly those in the Norwegian-American business community. Ewald suffered many sleepless nights, irritability, anxiousness, loss of appetite, uncontrollable crying, feelings of isolation, periods of withdrawal, upset stomach, a sense of dread, overwhelming feelings of worthlessness and helplessness, obsessive worry, an inability to concentrate, sadness, despair, headaches, eye tremors, and pain and tightness in her chest and other physical and emotional pain and distress as a result of the pay discrimination she experienced while working for The Embassy. The disparity in her pay

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and benefits and the Embassy‘s refusal to acknowledge her equal worth also has deeply affected her trust in people in authority and in work situations. (Ewald.) 110. Mr. Mikalsen testified that Ewald suffered, and continues to suffer, periods

of anxiety, high stress, irritability and embarrassment and other similar emotional distress and physical pain symptoms. (Mikalsen; Ewald.) 111. Ewald has earned no income from working at Tysvar since leaving the

Embassy in 2011. She is at Tysvar, in part, because she trusts she will be treated fairly there. (Ewald.) CONCLUSIONS OF LAW 1. Embassy and its representatives (particularly Gandrud) made knowingly

false representations to Ewald regarding her compensation and position in order to induce, influence, persuade or engage her to change her existing situation in order to work for the Embassy in Minnesota in violation of Minn. Stat. §181.64. 2. Embassy violated Minn. Stat. §181.64, and Ewald is entitled to all actual

damages in consequence of the Embassy‘s knowingly false representations to Ewald inducing her to accept the position and move to Minnesota. See Minn. Stat. §181.65. Grouse v. Group Health Plan, 306 N.W.2d. 114, 116 (Minn. 1981). Actual damages include compensatory damages. Longbehn v. Schoenrock, 927 N.W.2d 153 (Minn. Ct. App. 207); Ray v. Miller, 684 N.W.2d 404, 407 (Minn. 2004). Damages suffered by Ewald include: a. Back pay, with interest at an appropriate inflation factor, to account for the difference between the compensation Ewald received in Norway

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($140,000 to $170,000 USD (salary, pension and benefits) compared to what she earned at the Embassy from 2008-2011: i. $85,000 for each year for a total of $255,000; b. Back pay, with interest at an appropriate inflation factor, to account for lost wages from the end of Ewald‘s employment at the Embassy to the date of trial, in an amount no less than $400,417.00 ($155,000 x 2 years, 7 months); c. Payment for lost benefits in the amount of at least $15,368 for the health benefits Ewald paid for coverage for her daughters during her employment at the Embassy. d. Moving costs and related expenses as follows: i. Airfare between Norway to USA for interview, and related to moving including looking for housing ($6,030); ii. Expenses to set up new hoe in Minneapolis ($31,000); iii. Transportation expenses during transition period ($2,975automobile); iv. Maintaining home (mortgage and expenses) in Norway for six months ($36,180); e. Unreimbursed travel expenses to perform job duties for Defendant in an amount of at least $2,362.00; f. Mental anguish, pain, suffering, humiliation, embarrassment, including damage to reputation: i. Past: $200,000, and ii. Future: $100,000; g. Future loss of compensation of $140,000 to $170,000 USD (salary, pension and benefits), to account for what she lost when she left her job in Norway to take employment at the Embassy, for a period of three years from the date of the completion of the trial ($465,000 @ $155,000 x 3 years); and h. Reasonable attorney‘s fees, costs and expenses to be determined based on petition.

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3.

Defendant violated the Equal Pay Act (―EPA‖) by paying Ewald less salary

than her male colleague for equal work on jobs requiring equal skills, effort and responsibility. 29 U.S.C. §206(d). 4. Ewald‘s position need not be identical to be considered equal under the

EPA. Grover v. Smarte Carte, Inc., 836 F.Supp. 2d 860, 866 (D. Minn. 2011); Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002). Ewald‘s position to develop relationships between educational institutions and institutions and businesses involved in research (involving interactions between the Midwest and Norway) required equal skill, effort, and responsibility and was substantially similar to Davidson‘s position in which he was expected to develop business relationships involving interactions between the Midwest and Norway. 5. equal. 6. Defendant failed to meet its burden of proof to demonstrate a clear and At all times relevant, the work of Ewald and Davidson was substantially

rational reason for the pay differential between Ewald‘s and Davidson‘s salaries and benefits was due to a factor other than sex. 7. Under the EPA, Ewald is entitled to a backpay award for unpaid wages in

the amount of $99,000 ($90,000 salary difference plus $9,000 pension contribution). See 29 U.S.C. §216(b). 8. Ewald is entitled to reasonable attorney‘s fees, costs and expenses as

provided by the EPA. See 29 U.S.C. §216(b).

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9.

Liquidated damages are a mandatory award under the EPA, unless

Defendant can show good faith and reasonable grounds for believing it was not in violation of the law. See 29 U.S.C. §§216(b), 260; Herndon v. Wm. A. Straub, Inc., 17 F.Supp.2d 1056, 1064 (8th Cir. 1998). Embassy has failed to show it had reasonable grounds for believing it was not in violation of the law. Ewald is entitled to liquidated damages equal to the back pay for unpaid wages awarded. 10. The Minnesota Human Rights Act (―MHRA‖) declares it an unfair

discriminatory practice for an employer to discharge or otherwise discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment based on their sex. (Minn. Stat. §363A.08, subd. 2.) 11. Defendant Embassy is an employer as defined by the MHRA. See Minn.

Stat. 363A.03, Subd. 16. 12. Plaintiff Ellen S. Ewald is an employee as defined by the MHRA. See

Minn. Stat. 363A.03, Subd. 15. 13. Defendant violated the MHRA when it discriminated against Ewald

motivated by her sex when it paid her less salary and benefits than her male counterpart. See Minn. Stat. 363A.08, Subd. 2(3). 14. Defendant‘s stated reasons for Ewald‘s unequal pay, lesser benefits and

travel expenses related to her job duties, and less insurance coverage compared to her male counterpart for equal work on jobs requiring equal skills, effort and responsibility are pretext for discrimination. 39
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15.

Under the MHRA, Ewald is entitled to compensation for her actual

damages, including back pay, contributions that were not made to her pension, damages for mental anguish and suffering, reasonable attorney‘s fees and costs, and punitive damages in an amount of no more than $25,000. See Minn. Stat. § 363A.29, Subd. 4;

363A.33, subd. 7; see also Ray v. Miller Meester Adv., Inc., 684 N.W.2d 404, 408 (Minn. 2004). 16. Damages for mental anguish may also include compensation for personal See Kohn v. City of Minneapolis Fire

humiliation and impairment of reputation.

Department, 583 N.W.2d 7, 14 (Minn. Ct. App. 1998). The mental anguish need not be severe, or accompanied by physical injury, to support an award of damages. See Id. Damages for mental anguish, including a diminished sense of self worth, may be established solely through subjective testimony. See Gillison v. Dep’t of Natural

Resources, 492 N.W.2d 835, 842 (Minn. Ct. App. 1992). 17. Punitive damages are allowed upon a clear and convincing showing that a

defendant showed deliberate disregard for the rights of others. See Minn. Stat. § 549.20, Subd. 1(a). Embassy deliberately disregarded Ewald‘s rights to equal pay and benefits, without regard to gender. Embassy made no real assessment of the market value of the positions for which Ewald and her male peer were hired, undertook no investigation into the discrimination concerns Ewald raised and made no attempt to correct the pay differential. Based on this and all the other evidence, Ewald is entitled to punitive damages in an amount of $25,000.

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18.

The Court has the discretion to multiply a plaintiff‘s actual damages by up

to three times after finding that a defendant has engaged in an unfair discriminatory practice. See Minn. Stat. § 363A.29, Subd. 4; see also Ray v. Miller Meester Advertising, Inc., 664 N.W.2d 355, 369 (Minn. Ct. App. 2003), aff’d 684 N.W.2d 404 (Minn. 2004); see also Phelps v. Commonwealth Land Title Ins. Co, 537 N.W.2d 271, 277 (Minn. 1995). This multiplication is available without additional findings that the plaintiff was not fully compensated, and it is not duplicative of punitive damages. See Id. (finding one objective of the multiplication of damages is to encourage the private bar to bring MHRA claims). 19. Ewald is also entitled to an award of pre-judgment interest. See State by

Cooper v. Mower County Social Services, 434 N.W.2d 494, 500-01 (Minn. Ct. App. 1989) (discussing availability of interest in discrimination cases); see also Minn. Stat. § 549.09. Based upon the foregoing Findings of Fact and Conclusions of law, ORDER FOR JUDGMENT 1. Defendant Embassy violated Minn. Stat. 181.64 by knowingly

misrepresenting to Ewald that she would be paid equal to her male peer and that her male peer‘s position was equal. This representation induced Ewald to relocate from Norway to Minnesota. 2. Defendant Embassy violated Ellen Ewald‘s rights in violation of Minn.

Stat. §363A.08, and 29 U.S.C. § 206(b).

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3.

As a result of these violations, Ewald has suffered damages in the form of

past wage and benefit loss, compensatory damages, harm to reputation, non-monetary damages, and punitive damages as follows: a. $90,000 for difference in salary compared to Davidson. b. Past Wage loss for the time period at the Embassy: $255,000 (three years of reduced compensation compared to Ewald‘s average compensation in Norway) c. Past wage loss for the time period following employment at the Embassy: $400,417 to trial (2 years, 7 months at the average level of compensation Ewald received in Norway) d. Loss of benefits: i. ii. Health insurance premiums for daughters: $15,368 Contribution to pension: $9,000

e. Damages for emotional distress and mental anguish: $300,000 f. Future wage and benefit loss: $465,000 (three years from the date of trial) g. Liquidated Damages under the Equal Pay Act: $99,000; h. Expenses: 2010 Science Week: $2,362.00 i. Moving costs and related expenses as follows: i. Airfare between Norway to USA for interview, and related to moving including looking for housing ($6,030); ii. Expenses to set up new hoe in Minneapolis ($31,000); iii. Transportation expenses during transition period ($2,975automobile); iv. Maintaining home (mortgage and expenses) in Norway for six months ($36,180); 42
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4.

Pursuant to Minn. Stat.§363A.29, Subd. 4, the total award for past wage

and future wage and benefit loss damages will be doubled, the Court having found that equity requires such multiplication given how much Ewald has been damaged by Embassy‘s unfair discriminatory practice. Ewald is therefore entitled to an award of an additional $754,417.00 for her claim of past lost wages and benefits under the MHRA. Ewald is also entitled to an award of $465,000, as a multiplier of her future lost wages due to discrimination under the MHRA. 5. Ewald is also entitled to an award of $25,000.00 for punitive damages

under the MHRA. 6. Ewald is hereby awarded all pre-judgment interest on that portion of the

judgment representing the amount of past wages and benefits to be calculated and presented by Ewald‘s counsel in their fee petition. Interest shall be calculated at the legal rate set by statute. 7. As the prevailing party, Ewald is entitled to payment of her reasonable

attorneys‘ fees and costs pursuant to Minn. Stat. §§ 363A.29, Subd. 4(a), §363A.33, Subd. 7; 29 U.S.C. §216(b); and Minn. Stat. § 181.65. Ewald‘s reasonable attorneys‘ fees and costs will be determined by a fee petition submitted by Ewald within a reasonable time set by the Court.

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LET JUDGMENT BE ENTERED ACCORDINGLY. BY THE COURT

Dated: ____________ , 2014. SUSAN RICHARD NELSON United States District Judge

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