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Davis v. Town of Tazewell

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

October 25, 2019

SHARON LYNN DAVIS, Plaintiff,
v.
TOWN OF TAZEWELL, VIRGINIA, Defendant.

          Thomas E. Strelka, L. Leigh R. Strelka, N. Winston West, IV, and Brittany M. Haddox, Strelka Law Office, Roanoke, Virginia, for Plaintiff.

          W. Bradford Stallard, Penn Stuart & Eskridge, Abingdon, Virginia, for Defendants.

          OPINION AND ORDER

          James P. Jones, United States District Judge.

         The plaintiff, a former municipal employee, alleges gender-based wage discrimination and retaliation by her employer under Title VII. The plaintiff has not produced sufficient evidence to establish a genuine dispute of material fact as to each of the required elements of the her claims. Accordingly, I will grant the defendant employer's Motion for Summary Judgment.

         I.

         The relevant facts are largely uncontested. The following facts taken from the summary judgment record are either undisputed or, where disputed, are presented in the light most favorable to the nonmoving party.

         Plaintiff Sharon Davis was Treasurer of the Town of Tazewell, Virginia (“Town”), from February 2015 through July 2016. She possesses a bachelor's degree in human services, which had a curriculum like social work. Davis took accounting and law courses at a community college but did not receive a degree. She later became a certified public accountant but allowed her CPA license to lapse. Prior to becoming Treasurer for the Town, Davis had primarily worked as an accountant for various law firms and had no prior local government accounting experience.

         In early 2015, Davis applied to be the Treasurer for the Town based on an advertisement in the newspaper. She would be replacing forty-year Town Treasurer Linda Griffith. Upon her retirement, Griffith's annual salary was approximately $45, 000 per year, excluding her Virginia Retirement System (“VRS”) employer contribution. Davis was interviewed by a three-person committee of Town employees, and then the Town Manager, Todd Day, called Davis on February 28, 2015.

         During the phone call, Day offered Davis the Treasurer position at a starting salary of $36, 750, which included a five-percent VRS contribution. Day explained that her salary was set based on her educational background, her bachelor's degree in human services rather than accounting or another relevant degree, the absence of any governmental accounting experience, and her general lack of local government experience. The Treasurer position's salary range is set by the Town Council. Davis accepted the offer on the spot, and did not attempt to negotiate a higher salary. Davis was the best applicant in the pool, despite not meeting all of the criteria or being fully qualified.

         Throughout Davis' employment with the Town, she reported directly to Day. Over the course of her employment as Treasurer, she received three pay raises. She first requested a raise in her salary within a month of starting and Day increased her salary to $40, 000 a year.

         Shortly after starting as Treasurer, Davis requested a work cell phone to contact department heads who preferred texting to answering calls on their phones. Day denied her request and informed Davis that the Treasurer had never had a work cell phone because it was an office job that did not require people to go out into the field, unlike the department heads who used Town-issued cell phones. Davis eventually admitted in an email to Day that she could not justify a Town-issued cell phone for herself, given the low rate of expected usage.[1] The position of Town Treasurer still does not include a Town-issued cell phone.

         Davis received a second salary increase in July 2015, along with the rest of the Town employees, which increased her salary to $41, 200 a year. Davis complained to other Town employees about her salary after learning the starting salary of a new department head - specifically, the Parks and Recreation Director, Travis Barbee, whom Davis identifies as her comparator.[2]

         By way of comparison, Davis and Barbee were both department heads and reported directly to Day. Barbee's duties as Director of Parks and Recreation included managing all activities of “games, sports, local schools, communication, YMCA” and all recreation issues, whereas Davis primarily handled “bank reconciliation” and tax collection. Pl.'s Mem. Opp'n Ex. 2, Day Dep. 33, ECF No. 37-2; id. at Ex. 4, Regon Dep. 6-7, ECF No. 37-4. Furthermore, Day testified that the salary range for Director of Parks and Recreation, like the Treasurer position, had been determined by the Town Council. Thus, Day set a salary for both Barbee and Davis within those bounds, considering the salaries of the previous position holders, and weighing their qualifications.

         In terms of contrasting factors, the Parks and Recreation Director position had been vacant and open for six months without a suitable candidate when Barbee accepted the position without competition. In addition, Barbee had previously declined the Town's offer to be Director of Parks and Recreation, and negotiated his salary when he later accepted the Town's job offer. On the other hand, and as Davis has acknowledged in her deposition, she was competing against other applicants, overlapped with Griffith for the Treasurer position, and did not negotiate the starting salary when offered the position.

         In terms of credentials, Barbee's resume states that he obtained a bachelor's degree in sports management, had completed significant work toward a master's degree in business management, and was working toward a master's degree in sports management at the time he was hired. Barbee's resume also listed current certifications as a parks and recreation professional, as well as a spa and pool operator. Barbee had also completed a university executive development program for recreation professionals. Finally, Barbee had five years of local government experience in recreation and had held positions as an athletics coordinator in Georgia, recreation supervisor (athletics) in North Carolina, and director of parks and recreation in Tennessee. Day testified that he had offered the position to Barbee based on his education, experience, and knowledge.

         Day testified that he had confronted Davis when he learned from other department heads and Town employees about her complaints. During the conversation, she demanded another pay raise but did not specifically mention her gender as the reason behind her complaint.[3] In fact, Day testified that he did not “remember the gender issue ever coming up period with Miss Davis.” Day Dep. 80:19-20, ECF No. 37-2. Day refused to increase her salary at that time, and also issued a verbal warning for failing to perform necessary work duties and complaining about her salary to subordinates. Def. Mem. in Supp. Summ. J. Ex. 1, ECF No. 33-1 at 124 (May 19, 2016, entry to Davis' Consecutive Employee Warning Report).

         In June 2016, Davis informed Day that the federal government was considering a proposal to set a new minimum exempt employee salary under the Fair Labor Standards Act (“FLSA”). Day testified that when he learned exempt employees would be required to earn a salary of $47, 476 to remain exempt under the FLSA, he confirmed that the Town could not afford the associated raises under the proposed change to the FLSA. Day sent out notification memoranda to three employees stating that the Town would change their status from exempt to non-exempt if the proposal became law, due to constraints in the Town budget. Davis was one of the recipients of the notification memoranda, along with a male and another female employee. The proposed change to the FLSA ultimately never became law, so Davis would not have changed from a salaried employee to an hourly, non-exempt employee if she had stayed with the Town.

         Davis had her first and only performance review on June 20, 2016. Davis received generally “Satisfactory” and “Good” marks, but had a lower score on her “Interpersonal Relationships” and a written evaluation that she needed to “use [her] time wisely to emprove [sic] on the job performance” and to be “critical of yourself not others.” Pl.'s Mem. Ex. 6, Employee Performance Appraisal, ECF No. 37-6 at 2. Although Davis signed off on the review, she later testified at her deposition that she tries not to criticize other people, and “didn't really know what [Day] was talking about” in his assessment. Davis Dep. 140, ECF No. 37-1.

         Davis, along with other Town employees, received a pay raise in July 2016, with an increase to $42, 024. Day testified that Barbee's salary increased to $48, 195, and it was his only raise during his tenure as Director of Parks and Recreation with the Town. If Davis had become an hourly employee, she was set to be paid approximately $20.20 an hour so that her overall salary would not decrease. Rather, it would be increased due to her pay raise, and she would be compensated for any overtime work at the time-and-a-half rate. Davis admitted during her deposition that receiving overtime pay as an hourly employee “might have been good since [she] was working a lot.” Davis Dep. 95, ECF No. 37-1.

         Throughout the course of her employment as Treasurer, Davis engaged in volunteer work in the community. Davis testified that Day had prohibited her from performing volunteer work during working hours, although Davis claims that prohibition did not apply to male Town employees. Davis admitted she had been the only Town employee on the volunteer committee for the Town Sesquicentennial Celebration, and no additional evidence has been presented to support her assertion that Day's policy against volunteering during work hours did not apply to all other Town employees, male or female.

         Throughout 2016, the Town interviewed various vendors to update the financial software used by the Treasurer's department. A few of the vendors were suggested by Davis, and she even requested presentations to her department's staff to ask any “questions that [she] might miss.” Def. Mem in Supp. Summ. J. Ex. 1, ECF No. 33-1 at 85-86 (January 28, 2016, email from Davis to Day). On May 19, 2016, Day directed the Treasurer's department to coordinate with Robin Brewster, his executive assistant, and schedule times to meet with financial software vendors for presentations and eventually present a unanimous recommendation on a software program. In later emails that day between Brewster and the department, Davis stated that she could “make time any evening” to meet with representatives. Id. at 87. Brewster emailed the Treasurer's department and Day with the schedule of presentations, and these times included a July 19 presentation at 6:00 p.m.

         Even though Day had previously prohibited Davis from doing volunteer work during working hours, Davis testified that she had left the July 19 presentation early to attend last-minute volunteer meetings for the sesquicentennial celebration. Davis admits that she neither notified nor requested permission from Day to leave the mandatory meeting early. The Town's Personnel Manual clearly states that employees must notify the Town Manager as far in advance as possible if they are unable to report to work, must obtain permission to leave during work hours, and will face disciplinary action up to and including termination for unauthorized or excessive absences or tardiness.

         Instead, Davis testified that she had informed Robin Brewster, Day's executive assistant, that she needed to leave the presentation early and Davis was thus permitted to ask her questions first before leaving for her volunteer meeting. Davis testified that she had thought Brewster had authority to excuse her from the remainder of the mandatory software meeting, but claimed at other points in her testimony that Brewster had no supervisory authority and acknowledged Day was her direct manager.

         Day testified that he had verbally reprimanded Davis the following day for leaving a mandatory meeting for a second time, not performing necessary work duties, and complaining about her salary to others. He also followed up with a notation in her Consecutive Employee Warning Report. Def. Mem. in Supp. Summ. J. Ex. 1, ECF No. 33-1 at 124 (July 20, 2016, entry to Davis' Consecutive Employee Warning Report). Day demoted Davis from Treasurer to Accounting Clerk during the conversation, and informed her that her former subordinate, Leeanne Billings Regon, would take over as Treasurer. Davis requested two days of leave and left early that day to decide her next steps. Davis cleaned out her office over that weekend, but took her personal possessions home rather than moving them to the Accounting Clerk area. Davis formally resigned via a text message to Day on July 25, 2016. Davis testified that she had resigned due to her demotion.

         Under the Town's Disciplinary Procedure, a supervisor is advised to follow “progressive discipline.” Pl.'s Mem. Opp'n Ex. 9, Personnel Manual for the Town of Tazewell, ECF No. 37-9 at 27. As this was Davis' second incident, Day could have issued a written reprimand, and warned her that a third incident would result in more severe disciplinary action. Day testified that he had not followed this procedure for Davis, and the Personnel Manual notes that the policy is advisory and the Town “does retain the right to administer discipline in any manner it sees fit. . . . [and does not] restrict the Town's right to bypass the procedures suggested.” Id. at 27. In addition, Day testified that he had demoted employees on other occasions as a form of discipline. Day Dep. 56, 58, ECF No. 37-2.

         The Town's Personnel Manual contains a grievance procedure that covers various personnel actions, including “disciplinary demotions.” Personnel Manual, ECF No. 37-9 at 26. It also details the various steps for grieving such a demotion. See Id. at 29-31. Davis did not make use of this procedure. Instead, she met with a member of the Town Council, Jack Murray, to explain that she had been demoted and to get advice. According to Davis, Murray advised her to remain in her employment with the Town and promised to communicate with Day, but Davis never heard from Murray again.

         Upon Davis' resignation, Regon, the former subordinate of Davis, was officially promoted and formally offered the position of Treasurer with a starting salary of $37, 500 that included a VRS contribution. Regon testified that she had previously indicated interest in being Treasurer before Davis was interviewed for the position, but declined to apply at that time. Regon was an Accounting Clerk for eleven years before becoming Treasurer, and she had recently obtained a master's degree in human resource management. Regon did not have a CPA certification. Regon received a raise in July 2019, along with other Town employees, and her salary is currently $44, 000.

         Davis has worked in five different positions since she resigned from the Town, but not all of them involved accounting work. Davis was unemployed from January 2019 through mid-August 2019, but she has otherwise been able to find work. She was hired in ...


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