Virginia Tech faces trial over gender discrimination

Peter Vieth//February 24, 2011

Virginia Tech faces trial over gender discrimination

Peter Vieth//February 24, 2011

Virginia Tech is facing a trial in April over allegations of gender discrimination at the school’s fundraising office.

A federal judge denied summary judgment to Tech in one of two pending lawsuits accusing the school of sexual harassment and unequal treatment of women at its Office of University Development.

Many of the allegations in the two cases focus on the behavior of the plaintiffs’ direct supervisor, Robert Bailey. Plaintiffs in both cases offer colorful quotes attributed to Bailey, Tech’s Senior Director of Regional Major Gifts.

Bailey allegedly told one female fundraiser that she wasn’t worth as much as a man because she wasn’t the head of her household and that hiring women can be a liability because they might get pregnant and miss work.

He also allegedly said that if the woman repeated these comments, he might “slap her with a wet noodle,” a phrase that sounded sexually suggestive to Senior U.S. District Judge James C. Turk.

At a hearing in one of the suits, both sides offered evidence about the meaning of a reference to a “wet noodle.”

“He is a man who had made some admittedly inappropriate comments,” said Richmond lawyer Richard F. Hawkins III, the lawyer for one of the plaintiffs. “He does not believe he’s engaged in any harassment or retaliation. We respectfully disagree,” Hawkins said.

There are allegations of more pervasive inequity in the school’s development office, where employees worked on a $1-billion capital fundraising campaign. In the discrimination case, a study by the plaintiff’s expert showed a 15-percent disparity in salaries between men and women development employees.

In that case, three women who formerly worked as fundraisers at the school claim Tech officials violated the federal Equal Pay Act and Title VII of the Civil Rights Act. In a Feb. 7 opinion, U.S. District Judge James C. Turk denied Virginia Tech’s motion for summary judgment.

The case is Kennedy v. Virginia Polytechnic Inst. & State Univ., (VLW 011-3-088). The case has produced two prior Turk opinions, VLW 009-3-292 and VLW 010-3-286.

Virginia Tech hopes to combine the Kennedy action with a separate sexual harassment lawsuit filed by a former Tech employee with claims in both cases, Hanes v. Virginia PolyTechnic Inst. & State Univ. Both cases are before Turk in the Western District of Virginia.

The Kennedy case combines claims from three former Tech employees, Shana Kennedy and co-workers Erin Hofberg and Getra Hanes. All three complained they were unfairly paid less than male counterparts with comparable qualifications, a violation of the Equal Pay Act. Kennedy also advanced Title VII sex discrimination and retaliation claims.

Both the plaintiffs’ expert and the expert hired by Tech agree there is a pay disparity at the development office between men and women. The plaintiff’s expert, Alexander Vekker, found a 15.2-percent differential. Using a slightly different model, Tech’s expert, Janet Thornton, put the salary gap at 9 percent.

Thornton contends the 9-percent difference is not statistically significant, Vekker holds the 15.2-percent variation cannot be mere coincidence.

Either way, on Tech’s motion for summary judgment, Turk found the plaintiffs had satisfied their burden of establishing a prima facie case on the Equal Pay claims.

Tech argued it used only gender-neutral factors in determining the plaintiffs’ salaries. The school submitted affidavits from current and former development employees indicating that they do not believe Virginia Tech discriminates against women with regard to pay.

Nevertheless, the plaintiffs marshaled evidence to show there was some degree of subjectivity in salary decisions. Turk held he could not grant summary judgment “if a reasonable jury could find that the pay differential was, at least in part, motivated by a non-gender-neutral standard.”

On the Title VII claims, Turk found the question turned on whether the plaintiffs could show Tech’s non-discriminatory salary factors were mere pretexts. Bailey’s alleged comments were the determining element. Bailey allegedly told Kennedy that, as a woman and not the head of her household, she was not worth the same as a male employee in the same position. In the same conversation, he said female employees could be a liability and a “waste of space” because women could become pregnant and miss work.

Turk noted the claim of another plaintiff who said Bailey, after disparaging several female employees, told the plaintiff not to repeat what he had said. If she did, he said, he might “just have to slap [her] with a wet noodle.”

Attorneys in the case clashed over the implications of that expression, according to Nicholas Woodfield of Washington, lead counsel for the plaintiffs in the Alexander action. Tech lawyers submitted a “Dear Abby” column using the expression in an innocuous manner. The plaintiffs’ lawyers cited the Urban Dictionary to suggest a sexual connotation.

Turk concluded it was a phrase “with arguable phallic subtext.”

“While Virginia Tech has proffered evidence indicating that it made its pay determinations without regard to gender, Plaintiffs’ evidence would allow a reasonable jury to infer that Virginia Tech’s actions were illegal,” Turk wrote.

Turk also rejected summary judgment on Kennedy’s retaliation claims, noting her deposition testimony that Tech changed her performance standards without notice, set impossible benchmarks, denied training opportunities and unreasonably demanded replacements for lost records within several months after she made complaints.

The timing of Hofberg’s EPA claim meant it was barred by the statute of limitations unless the alleged equal pay violations could be shown to be “willful.” Turk found Bailey’s alleged comments and the conclusions of the plaintiffs’ expert that the salary differential was intentional to be sufficient to make the Hofberg claim a question for a jury.

The Alexander discrimination case is scheduled for a three-day trial on April 11, with the judge pressing for negotiations. “The parties have been encouraged by Judge Turk to settle the case,” Woodfield said.

At the summary judgment hearing, Turk “made a very strong push to all counsel to explore settlement,” said Hawkins, who represents Hanes in her separate sexual harassment case.

Settlement could be hindered by the fact of the two separate actions against Tech with a common plaintiff, based in large part on the same factual allegations. A two-day trial in the Hanes case is set for June 23.

Tech twice has asked Turk to consolidate the two cases. Turk denied the motion in 2009. A hearing on Tech’s second request for consolidation is scheduled for March 11.

Tech is represented in the suit by the school’s general counsel Kay K. Heidbreder and associate counsel Mary Beth Nash. The only comment from Tech came from university spokesman Larry Hincker: “We’re disappointed the judge did not grant summary judgment.”

VLW 011-3-088


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