United States District Court, W.D. Virginia, Abingdon Division
E. Strelka, L. Leigh R. Strelka, N. Winston West, IV, and
Brittany M. Haddox, Strelka Law Office, Roanoke, Virginia,
Bradford Stallard, Penn Stuart & Eskridge, Abingdon,
Virginia, for Defendants.
OPINION AND ORDER
P. Jones, United States District Judge.
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
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.
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.
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
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.
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.
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. The position of Town Treasurer still does
not include a Town-issued cell phone.
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
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.
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.
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.
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. 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
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.
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
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
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.
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.
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.
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.
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
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.
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.
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.
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 ...