United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE..
University of Virginia (“Defendant”) hired Betsy
Ackerson (“Plaintiff”) in the fall of 2012 for a
one-year term. Plaintiff was tasked with working on a
strategic plan to support Defendant's future
institutional growth. In the following years, her contract
was extended as the development and implementation of the
plan continued. However, in 2017, as Defendant's
then-serving President planned to step down and the plan
wrapped up, Defendant decided not renew its contract with
now alleges Defendant violated various federal statutes by
paying her less than male employees and by retaliating
against her for engaging in protected activity. Defendant
denies it discriminated against her and maintains it did not
renew Plaintiff's contract because there no longer was
any need for her temporary position. Both parties have moved
for summary judgment. (Dkts. 39, 47). Because a reasonable
jury could find that Plaintiff has identified a male employee
that performed work that was substantially equal to her work,
but was paid more than her, her Equal Pay Act, Title VII, and
Title IX claims survive. But because, among other reasons, a
reasonable jury would be required to find that
Defendant's failure to renew Plaintiff's position was
based on legitimate and non-discriminatory reasons, Defendant
is entitled to summary judgment on the retaliation claims.
Plaintiff's cross-motion addressing Defendant's
affirmative defenses will be denied without prejudice.
Standard of Review
Rule of Civil Procedure 56(a) provides that a court shall
grant summary judgment “if the movant shows that there
is no genuine dispute as to any material fact.”
“As to materiality . . . [o]nly disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute is “genuine”
if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
When considering cross-motions for summary judgment, the
court must “consider each motion separately on its own
merits to determine whether either of the parties deserves
judgment as a matter of law.” Defs. of Wildlife v.
N.C. DOT, 762 F.3d 374, 392 (4th Cir. 2014).
President Sullivan's Plan
fall of 2012, Defendant's President, Teresa Sullivan,
developed a new strategic plan for Defendant's future,
called the Cornerstone Plan. (Dkt. 48-2 at ECF 11). The plan
was to span several years and require investment of
substantial institutional resources. Id. After the
President's announcement of the plan, John Simon, the
Executive Vice President and Provost, tapped J. Milton Adams,
a senior administrator, to lead the plan. (Dkt. 48-8 at ECF
2). Adams became the Senior Vice Provost with the principal
responsibility for the strategic implementation of the plan.
requested that a Project Manager be assigned to help him with
management of the plan's development and implementation.
(Dkt. 48-4 at ECF 10). A “Project Manager for Strategic
Planning” position was approved and advertised
publically. (Dkt. 48-1 at ECF 127). It provided a salary
range of $60, 000 to $70, 000, with a one-year term.
Id. The position required at least a Master's
degree, preferred a Doctorate, and required experience in
higher education. The job description included the following
responsibilities: supporting the Senior Vice Provost;
managing an effective strategic planning process; collecting
reports and data; managing information flow regarding the
plan; designing a communication plan to facilitate
implementation; managing steering committees and other work
groups; and assisting the work group chairs to interface with
the financial team to produce cost estimates, among other
things. (Dkt. 48-1 at ECF 127-28). The position did not
require supervision of any other employees, but did require
collaboration with other departments. (Dkt. 48-1 at ECF
Plaintiff Hired as the “Project Manager for Strategic
November 2012, Plaintiff applied to the Project Manager
position. Plaintiff earned a Ph.D. in Higher Education and an
M.B.A. (Dkt. 48-2 at ECF 13-14). She also had several years
of higher education experience. From 1995 to 1996, Plaintiff
worked as an Admissions Counselor at Sweet Briar College,
making around $20, 000 a year. (Dkt. 48-2 at ECF 15; dkt.
48-11 at ECF 47). After several years in the private sector,
she returned to higher education in 2002, working as a Senior
Corporate Gifts Officer at the College of William and Mary.
(Id. at ECF 14). While at William and Mary she made
around $65, 000 a year. (Dkt. 48-11 at ECF 48). She worked at
William and Mary until she decided to attend to graduate
school at the University of Virginia. While a Ph.D. student,
Plaintiff worked as a Graduate Assistant and later as an
Academic Affairs Associate for Defendant. (Id. at
ECF 13). She received a stipend as a Graduate Assistant, and
made around $35, 000 a year as an Academic Affairs Associate.
Id. After graduating, Plaintiff became the
Co-Principal at a higher education start-up venture in
Ireland, self-funding her salary. Id.
receiving her application, Defendant selected Plaintiff for
an interview and subsequently offered her a one-year contract
as Project Manager. (Dkt. 48-1 at ECF 17). She negotiated a
starting salary of $70, 000 and received a $1, 000 signing
bonus. (Id. at ECF 22-24).
plan was officially approved by the Board of Visitors in
2013. (48-1 at ECF 42). At that point, Plaintiff's duties
transitioned from development to implementation, with some
new tasks including financial forecasting and modeling for
the plan. (Id. at ECF 42-43).
Plaintiff Requests New Jobs
months into her first year, Plaintiff approached Simon and
asked to work directly under him in the Provost's Office.
(Dkt. 48-1 at ECF 58-61). Simon displayed interest and asked
Plaintiff to provide him with a proposed job description,
which she did. (Id. at ECF 60-61). Simon never
extended an offer for this proposed position. (Id.).
Then, as the end of her first contract neared, in November
2013, she also approached Adams and Nancy Rivers, the
President's Chief of Staff and Associate Vice President
for Administration, regarding a new job. (Dkt. 48-1 at ECF
73). She discussed the amount of work she had taken on and
claimed her salary was not commensurate with her work.
(Id. at ECF 74). Plaintiff specifically claims,
although Defendant disputes, she told her superiors that her
inequitable pay reflected gender discrimination. (Dkt. 53-3
at ECF 39). She proposed a higher salary, a new title, the
creation of a “continuous planning” office, and
the assignment of managerial responsibility. (Dkt. 48-8 at
ECF 5). After the meeting, her term was renewed for another
year in her then-existing position, and she was given a 10%
salary increase, bringing her salary up to $79, 310.
Id. Her other proposals were denied.
Plaintiff's Medical Leave
month after the November 2013 meeting, Plaintiff took medical
leave for Chronic Fatigue Syndrome. (Dkt. 48-1 at ECF 35).
While she was out on medical leave, and due to “serious
space issues” in the Provost's Office, the
University reassigned her empty office to another employee
who needed office space. (Dkt. 48-13 at ECF 12, 25). This was
not unique; the lack of office space affected other employees
as well. (Id. at ECF 11-12, 25-27).
six months later, in July 2014, Plaintiff returned to work by
gradually increasing her hours. (Dkt. 48-1 at ECF 94-95).
Because her office was now filled, she was assigned a
cubicle. (Dkt. 48-13 at ECF 12). She was later offered
another, more private, workspace, but she turned it down.
(Dkt. 48-1 at ECF 103). Due to the move, Plaintiff at first
lacked a personal printer because her old printer remained in
her previous office space. (Dkt. 48-1 at ECF 96). However,
she was able to obtain a personal printer from Defendant,
which she used for the remainder of her employment.
(Id. at ECF 97-98).
Turnover in the Administration Affects the Plan
unveiled a new organizational structure the same month
Plaintiff returned to work. (Dkt. 48-1 at ECF 110). Plaintiff
felt her new classification undervalued her contributions.
(Id. at ECF 139). In light of this organizational
reworking, she sought a review of her position. (Id.
at ECF 110). In a three page memorandum to Adams and Rivers,
she contended that “there was a serious salary inequity
issue, and explained that a gross inequity existed between
the work I was doing and the salary I was receiving compared
to comparable positions at U.Va.” (Id. at ECF
138). She concluded her memo by saying:
It is clear that my current salary is not in line with the
level and scope of work for which I am held responsible and
that for the past year I have been grossly undercompensated.
For this reason, I request that a retroactive salary
adjustment be made to correct this long-standing issue.
(Dkt. 48-1 at ECF 140). The memorandum did not reference her
gender, although it did reference previous discussions where
Plaintiff had tied the “salary inequity issue” to
her gender. (Dkt. 53-3 at ECF 64-65). A month after she sent
the memorandum, a Human Resources Consultant, Angelee
Godbold, met with her and conducted a “Position
Review.” (Dkt. 48-14 at ECF 5). This review, which
lasted two-and-a-half hours, analyzed her job duties and
responsibilities. (Id. at ECF 10). Plaintiff
subsequently continued to discuss a proposed Assistant Vice
Provost position and a proposed Office of Continuous Planning
(which she hoped to lead) with her supervisor, Adams. (Dkt.
48-8 at ECF 6).
Simon, who was the Provost and Executive Vice President, and
President Sullivan disagreed about whether an Office of
Continuous Planning and associated administrative positions
were even necessary. (Dkt. 48-3 at ECF 21; dkt. 48-8 at ECF
6-7; dkt. 48-9 at ECF 14-15; dkt. 53-3 at ECF 72). This
high-level disagreement slowed down any potential for changes
to Plaintiff's role. And then, in October 2014, Simon
publicly announced that he would be leaving Defendant the
following June. (Dkt. 48-8 at ECF 6). Simon's imminent
departure created further “uncertainty” about how
Defendant would engage in ongoing planning. (Dkt. 48-9 at ECF
14-16). In light of this uncertainty, neither Godbold nor
Adams was able to offer any changes to Plaintiff's role.
Accordingly, Plaintiff's project manager position was
renewed again in late 2014, but no other changes were made to
the position at that point. (Id. at 15-16).
Defendant's administration stabilized, and once it did,
President Sullivan decided not to create an Office of
Continuous Planning. (Dkt. 48-3 at ECF 21). Plaintiff
nevertheless continued to have conversations with her
superiors about her proposed job description. Adams informed
her that no new position would be approved unless Simon, who
was now only months away from leaving, came to an agreement
with the President. (Dkt. 53-3 at ECF 69). Plaintiff later
followed up with Adams to see whether any such agreement ever
occurred. (Id. at ECF 70). When Adams told her that
he did not believe it had, Plaintiff responded that she was
going move forward by herself to call a meeting with
President Sullivan, Simon, Adams, and Rivers to get an answer
to her request for a new position. Id. Adams became
frustrated and told her that if she tried to schedule such a
meeting, she “risk[ed] losing [her] job.”
(Id. at ECF 70). Adams also told Plaintiff not to
talk to anyone else about her ongoing requests for a new
position or her planned meeting with Defendant's senior
administrators. (Id. at ECF 71). Based on Adams'
demeanor and response, Plaintiff dropped the issue.
this incident, several months later Plaintiff received a
salary adjustment of 1%, which was followed shortly by a
merit increase of 2.24%, raising her salary as Project
Manager to over $81, 000. (Dkt. 48-2 at ECF 4).
Plaintiff Promoted to “Assistant Vice
April 2016, with a new Provost in place, Plaintiff received a
revised job description, a new title (“Assistant Vice
Provost”), and an increased salary (from $81, 000 to
$95, 000). (Dkt. 48-8 at ECF 8). Like her previous employment
contracts, this new position remained temporary and ran
through December 2017. (Id.). Adams had retired, and
so Plaintiff now reported to Vice Provost Anda Webb. (Dkt.
48-8 at ECF 7). Plaintiff was still responsible for
facilitating University planning and institutional
effectiveness. (Dkt. 48-1 at ECF 144-45). Similar to
Plaintiff's previous position, the new position did not
involve teaching, nor did it require the supervision of any
employees. Later that year, Plaintiff, as well as
several other Associate Vice Provosts, received a pay
increase. Her new salary was $110, 000. (Dkt. 48-2 at ECF 5).