United States District Court, E.D. Virginia, Norfolk Division
DR. ARCHIE EARL, Plaintiff,
NORFOLK STATE UNIVERSITY, THE BOARD OF VISITORS OF NORFOLK STATE UNIVERSITY, and THE COMMONWEALTH OF VIRGINIA. Defendants.
OPINION AND ORDER
MARK S. DAVIS, District Judge.
This matter is before the Court on a Motion for Conditional Class Certification and for an Order Authorizing Court Notice to Potential Class Members filed on September 15, 2014 by Dr. Archie Earl ("Plaintiff" or "Earl") in his Equal Pay Act ("EPA") action against Norfolk State University ("NSU"), the Board of Visitors of Norfolk State University, and the Commonwealth of Virginia (collectively "Defendants"). ECF No. 38. After examining the briefs and the record, the Court determines that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. Fed.R.Civ.P. 78(b); E.D. Va. Loc. R. 7 (J). For the reasons set forth below, Plaintiff's Motion for Conditional Class Certification is GRANTED IN PART and DENIED IN PART.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff is a "66 year old, Black, male Associate Professor in the Department of Mathematics at Norfolk State University, a "state supported" university located in "the Commonwealth of Virginia." Pl.'s Second Am. Compl. ¶ 1, ECF No. 23. In 2006, according to Plaintiff's Second Amended Complaint, the Faculty Salary Issues Research Committee ("the Committee") began to study "gross inequities in faculty salaries." Id . ¶ 10. The purpose of the Committee's study was to "advise the NSU administration of its findings, in order that remedial steps could be taken to redress such inequities, if any, as may be uncovered." Id . Plaintiff alleges that the Committee requested the relevant "data from the NSU Human Resources Office, " but claims that "the data provided were filled with serious errors that would have led to unreliable results." Id . Plaintiff does not describe the nature of the alleged errors found in the data. The "Committee then decided to modify its study" to analyze "only sample data" from the Committee members' own departments. Id . ¶ 11. According to Plaintiff, NSU advised the Committee "that it was preparing its own study of the salary inequities question, promising to reveal the results of this study so that the matter may be resolved reasonably, amicably, and with dispatch." Id.
Meanwhile, "based on the Committee's ongoing analysis, " Plaintiff asserts that he discovered that his own salary was "woefully inadequate" compared to "recent hires, and white faculty, and younger faculty, and female faculty, " although Plaintiff alleges that "he was at least as qualified" and that "the responsibilities of the job[s] were essentially equivalent." Id . ¶ 12. "[U]sing inferential statistical analyses" of the sample data, the Committee determined that NSU was discriminating against "[b]lack faculty, " "men, " and "aged (over 40) faculty." Id . ¶¶ 14-16. However, Plaintiff does not provide the results of the Committee's "inferential statistical analyses" or otherwise describe the results of the study, except with respect to his own salary. Id.
Among other causes of action, in his Second Amended Complaint, Plaintiff alleged that Defendants have violated the EPA by creating an "inequity in pay as between female faculty at NSU, for equal work on jobs requiring equal skill, effort and responsibility...." Id . ¶ 19. In addition, Plaintiff has sought to pursue his EPA action as a collective action pursuant to 29 U.S.C. § 216(b). Id . ¶ 8.
On June 26, 2014, the Court issued an Opinion and Order dismissing all of Plaintiff's claims except his EPA claim. ECF No. 33. In that Opinion and Order, the Court advised him that, "if Plaintiff still wishes to proceed as a collective action on his EPA claim... he should file a motion for conditional certification, pursuant to 29 U.S.C. § 216(b)." Id. at 64. The Court noted that "[t]o obtain conditional certification, however, Plaintiff will likely need to present facts far beyond his own department to support [his] allegations that defendant[s] [have] a company-wide policy resulting in potential FLSA violations.'" Id . (quoting Bernard v. Household Int'l, Inc., 231 F.Supp.2d 433, 435 (E.D. Va. 2002)).
On September 15, 2014, Plaintiff moved for conditional class certification and sought an order "directing [NSU] to provide to Plaintiff, within fourteen days, a list in electronic database form, with home addresses and contact information (including telephone numbers and email addresses) of all salaried male teaching faculty who were employed by NSU for some period of time during the last three years" and to provide notice "in conspicuous places on campus, including the NSU website" to potential class members. Pl.'s Mot. for Conditional Class Certification at 1-2. In support of his motion, Plaintiff submitted affidavits of three male teaching faculty belonging to three different NSU departments, see Pl.'s Mot. for Conditional Class Certification Exs. 4-6, ECF Nos. 38-4, 38-5, 38-6. The affidavits of Drs. Abatena and Agyei are practically identical and state, in pertinent part, that:
I... grant [Plaintiff] permission to file a class action lawsuit, on my behalf, against [Defendants], for discriminating against me by violating the Federal Equal Pay Amendment [sic] (EPA), by paying me a lower salary than certain female members of my department, school, or university... sometime during the period of September 2003 thru [sic] March 2013.
Id. Exs. 4-5. Dr. Meshesha's affidavit similarly grants Plaintiff permission to file a class action against Defendants on Dr. Meshesha's behalf; however, it only states that Defendants "discriminat[ed] against me by violating the Federal Equal Pay Amendment [sic] (EPA), by paying me a lower salary than certain faculty members of other departments, schools, or universities as prohibited by the Federal EPA." Id . Ex. 3.
In his brief supporting the instant motion, Plaintiff contends that he has made a sufficient factual showing to warrant conditional certification based on allegations in the Second Amended Complaint, the affidavits attached to his motion, and the fact that "NSU's compensation practice or policy is formulated and executed by the Administration for the entire teaching faculty." Pl.'s Br. Supp. Mot. for Conditional Class Certification at 2, ECF No. 39. More specifically, Plaintiff contends that the Second Amended Complaint's allegations concerning "statistical analyses done by, and in, various departments of the University" indicate the existence of a class of persons similarly situated to Plaintiff. See id. In addition, to support his contention that "NSU's compensation practice or policy is formulated by the Administration for the entire teaching faculty, " Plaintiff alleges that "[a]ll faculty contracts are approved by, and signed by, the University President or Vice-President for Academic Affairs/Provost" and that NSU applies "the same compensation policy and practice" to teaching faculty in NSU's "ancillary sites" as it does to teaching faculty at its central, Park Avenue facility. See id. at 3. Plaintiff also argues that, in the event the Court conditionally certifies the collective action, it would not be unreasonably burdensome to require Defendants to "provide a list of potential class members in a computer datafile format." Id. at 5.
On September 29, 2014, Defendants responded to Plaintiff's motion. Def.'s Opp'n Br. to Pl.'s Mot. for Conditional Class Certification, ECF No. 40. Defendants argue that Plaintiff has failed to present sufficient facts to warrant conditional certification of an EPA collective action because professors outside Plaintiff's department are not similarly situated to him. See id. at 3-4. Defendants contend that, to the extent a person outside Plaintiff's department could not serve as a comparator for EPA purposes, male teaching faculty in departments outside of Plaintiff's department are not similarly situated to Plaintiff. See id. at 2-3. Defendants have attached NSU's faculty performance policy to their brief, Def.'s Opp'n Br. to Pl.'s Mot. for Conditional Class Certification Ex. A, ECF No. 40-1, and contend that the research, professional development and service, university service, and community service evaluation criteria will involve considerations that are not "uniform among NSU's departments." Id. at 4.
On October 2, 2014, Plaintiff filed a rebuttal brief reiterating his contention that he has presented a sufficient factual basis to support conditional certification. Pl.'s Br. in Rebuttal to Def.'s Resp. Opposing Conditional Class Certification, ECF No. 41. Plaintiff argues that the affidavits of three professors outside of his department establish that potential claimants exist, and that comparators in each of such ...