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WDVA: UVA pay discrimination case can go to trial

Genuine factual disputes remained as to whether a former university contract employee suffered pay discrimination. A male comparator with essentially equal duties received a significantly greater starting salary.

Background

In the fall of 2012, University of Virginia President Sullivan developed a new strategic plan for the University’s future, called the Cornerstone Plan. The senior administrator tapped to lead the plan requested a project manager to help him manage the plan’s development and implementation. Plaintiff Betsy Ackerson, who held a Ph.D. in higher education and an M.B.A., was hired with a one-year contract for $70,000.

Six months into her first year, Ackerson began advocating for a new position in the Provost’s office. She described the amount of work she’d taken on and said her salary was not commensurate with her work. She proposed a higher salary, new title, and assignment of managerial responsibility. Her term was renewed for another year in her then-existing position, but she was given a 10 percent raise, bringing her salary to $79,310.

In late 2013, Ackerson took a six-month medical leave. Due to serious space problems in the Provost’s office, the University re-assigned her empty office to another employee. Thus, when she returned, she was first assigned a cubicle before being offered another more private workspace. Her cubicle did not have a printer, though she later obtained one from the University and used it for the remainder of her employment.

Ackerson continued to express her belief that she had been grossly undercompensated for the scope of work for which she was held responsible. During this time, the University was undergoing high-level staff transitions. After the administration stabilized, Ackerson received a small raise. A new Provost was installed, and Ackerson received a revised job description, a new title, and a salary increase to $95,000. In late 2016, her salary was increased to $110,000. Her contract ran through December 2017.

Ackerson filed a charge of discrimination with the EEOC in 2016 and initiated this lawsuit one month after receiving her Notice of Right to Sue. In June 2017, she received notice that her contract would not be renewed at the end of its term. She still received a 3 percent merit increase for the remainder of her employment.

Equal Pay Act

The University is not entitled to summary judgment on Ackerson’s pay discrimination claims. A reasonable jury could find that at least one of Ackerson’s proposed comparators, J. Thompson, received higher wages for equal work in a job that was performed under similar working conditions.

Thompson initially made $95,000 as Assistant Provost for Academic Planning and Development, as compared to the $75,000 to $81,000 that Ackerson made as Project Manager. The fact that Ackerson was paid more later in her employment than Thompson was does not remedy the earlier pay differential.

Thompson was hired as part of the University’s Cornerstone Plan, and 70 percent of his effort was to be on planning, implementing, and assessing strategies for University growth, including direction in developing the institutional planning process. Another 20 percent was focused on “building a model of academic/development planning,” which included some fundraising duties. The remaining 10 percent was to be focused on other duties as assigned, including teaching and research as appropriate.

Ackerson also was hired in response to the Cornerstone Plan, and she spent 60 percent of her time working with the plan’s steering committee and work groups. Another 30 percent was devoted to communicating the strategic plan, which included developing costs and funding sources. As with Thompson, the remaining 10 percent of her time was for other duties as assigned.

Ackerson’s job description said that a doctoral degree was preferred, a master’s degree was required, and considerable management experience (three or more years) in a large organization or project was desired. Thompson’s position also required a master’s degree, but a bachelor’s with significant relevant experience could be considered instead. Thompson’s position also asked for three to five years of administrative experience in higher education. Thus, a reasonable jury could find that Ackerson’s job required skill equal to Thompson’s, if not more. And there is no evidence of any difference in the effort required by the two positions.

Moreover, Thompson reported directly to a Provost, who reported to the President. Ackerson reported to a Senior Vice Provost, who reported to the President. Thus, both Thompson and Ackerson were insulated from the President by one layer. A reasonable jury could find that they exerted equal amounts of responsibility.

Title VII

For the same reasons, Ackerson has presented a triable claim for sex discrimination based on wage disparity. In light of the similarities between Thompson’s and Ackerson’s roles, reasonable jurors could disagree about whether the one-off tasks that were part of Thompson’s “other duties as assigned” were sufficient justification for paying him more. The University’s awareness of Ackerson’s concerns, and its subsequent inaction, provide further evidence on which a reasonable jury could rely in finding for Ackerson on this claim.

Retaliation

The University is entitled to summary judgment as to retaliation.

Neither Ackerson’s move to the cubicle nor her loss of a personal printer are materially adverse actions against her. Ackerson was able to get another printer from her IT department. And while an office transfer might be considered an adverse action in some contexts, the facts in this case do not support that conclusion. Multiple individuals were being moved between offices to address space issues; no one was attempting to punish Ackerson for her illness. Even if either deprivation could be considered an adverse action, the University’s space issues provide a legitimate nondiscriminatory reason for its actions.

The University’s initial failure to provide Ackerson with a change in title and pay raise also do not constitute adverse actions. The University had no open position to which Ackerson applied, and Ackerson wasn’t entitled to the creation of one. Moreover, Ackerson ultimately did receive a pay raise and promotion.

Finally, assuming that Ackerson’s retaliation claim could rest on the non-renewal of her contract, the University has presented a legitimate reason for non-renewal: Her work with the Plan was ending. In fact, when Ackerson discussed the new Assistant Vice Provost position with Adams, they contemplated it ending in December 2017 – precisely when Ackerson’s position actually expired. In addition, the University was preparing for a transition to a new president and understandably did not want to tie itself to a mast of the outgoing president’s choosing. Finally, it is undisputed that Ackerson’s work load was wrapping up. The University had no duty to create more work in order to keep her employed.

Motion for summary judgment granted in part and denied in part.

Ackerson v. Rector and Visitors of the Univ. of Va., Case No. 3:17cv11, June 27, 2018. WDVA at Charlottesville (Moon). VLW No. 018-3-268, 26 pp.