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Ackerson v. Rector and Visitors of University of Virginia

United States District Court, W.D. Virginia, Charlottesville Division

June 27, 2018

Betsy Ackerson, Plaintiff,
The Rector and Visitors of the University of Virginia, Defendant.



         The 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 Plaintiff.

         Plaintiff 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.

         I. Standard of Review

         Federal 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).

         II. Factual Background

         A. President Sullivan's Plan

         In the 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. (Id.).

         Adams 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 127-28).

         B. Plaintiff Hired as the “Project Manager for Strategic Planning”

         In 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.

         After 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).

         The 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).

         C. Plaintiff Requests New Jobs

         Six 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.

         D. Plaintiff's Medical Leave

         Then, a 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).

         Approximately 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).

         E. Turnover in the Administration Affects the Plan

         Defendant 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).

         However, 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).

         Eventually 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.

         Notwithstanding 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).

         F. Plaintiff Promoted to “Assistant Vice Provost”

         In 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.[1] 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).

         G. ...

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