Etheridge v. Board of Trustees of the Univeristy of West Alabama, The

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

BARBARA ETHERIDGE, }

}

Plaintiff, }

}

v. } Case No.: 7:18-CV-00905-RDP

}

THE BOARD OF TRUSTEES OF THE }

UNIVERSITY OF WEST ALABAMA, }

}

Defendant. }

MEMORANDUM OPINION

This case is before the court on Defendant’s Motion for Summary Judgment. (Doc. # 30).

The Motion has been fully briefed (Docs. # 31, 36, 46) and is under submission. After careful

review, and for the reasons discussed below, Defendant’s Motion (Doc. # 30) is due to be

granted.1

I. Background2

On January 3, 1992, Plaintiff Barbara Etheridge began her employment at Defendant

University of West Alabama (“Defendant” or “the University”), located in Livingston, Alabama,

as a Perkins Loan Officer. (Doc. # 32-1 at 13, 16). Her hourly wage was $5.75. (Doc. # 32-1 at

16).

1 Defendant’s Motion to Strike (Doc. # 43) is also under submission. The court concludes that Defendant’s

Motion to Strike (Doc. # 43) is due to be denied. Even considering the entirety of Plaintiff’s Affidavit, the court has

determined that Defendant’s Motion for Summary Judgment is due to be granted.

2 The facts set out in this opinion are gleaned from the parties’ submissions and the court’s own

examination of the evidentiary record. All reasonable doubts about the facts have been resolved in favor of the

nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These

are the “facts” for summary judgment purposes only. They may not be the actual facts that could be established

through live testimony at trial. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th

Cir. 1994).

At all relevant times, the University determined employee wages by weighing specific

factors, including: (1) qualifications; (2) quality of work; (3) longevity; (4) knowledge, skill, and

ability; (5) experience; and (6) budgetary constraints. (Doc. # 32-2 at 33; Doc. # 32-5 at 33). The

University based pay-raise decisions on “equity and longevity calculations,” which are evaluated

each fiscal year. (Doc. # 32-1 at 68).

Longevity calculations are based on the number of years an employee is

employed with the University. Equity is based on the market value of the position

and the employee’s current position. The amount of funds that go into this

calculation is based off of the amount that faculty members have gotten through

promotion and tenure or increased credentials. . . . Whatever dollar amount that is,

the staff has allocated a percentage, and then that percentage is then divided out

among the staff positions.

(Doc. # 32-1 at 68-69). Even taking all of this into account, the number and amount of pay

increases that could be awarded at any given time were constrained by budgetary limitations.

(Doc. # 32-1 at 70).

In September 1993, Plaintiff was promoted to a Student Accounts Clerk. She held that

position until January 1994 and maintained the same hourly wage of $5.75. (Doc. # 32-1 at 16).

In January 1994, Plaintiff was promoted to Student Account Supervisor. (Doc. # 32-1 at 17). Her

hourly wage was increased to $8.15. (Doc. # 32-1 at 17). She remained in this position until

September 2003, at which time she was promoted to Accounting Supervisor. (Doc. # 32-1 at 17).

Plaintiff’s hourly wage was initially increased to $14.17. (Doc. # 32-1 at 18). While employed in

the Accounting Supervisor position, her hourly wage increased several times: to $26.36/hour in

September 2013; and to $26.54/hour in September 2014. (Doc. # 32-1 at 18; Doc. # 40-5; Doc. #

40-21 at 1).

In the position of Accounting Supervisor, Plaintiff’s supervisor was George Snow, who

(at that time) was the Comptroller. (Doc. # 32-1 at 27). In 2014, Snow fell ill and could not

perform his duties as Comptroller; he was often too sick to work and was frequently out of the

office. (Doc. # 32-1 at 28-29, 117). Because of this, Plaintiff performed many of Snow’s duties

(in addition to her own) to maintain proper operations. (Doc. # 32-1 at 28-29). At this time, and

while undertaking these additional duties, Plaintiff’s hourly wage equaled an annual salary of

$59,144.00. (Doc. # 32-5 at 37).

In July 2014, Snow retired after serving as the Comptroller for 27 years.3 (Doc. # 32-1 at

27-28). At the time of his retirement, Snow’s annual salary was $99,822.00. (Doc. # 32-6 at 1-2,

¶ 3). Before Snow retired, however, Raiford Noland, the then-Vice President of Financial

Affairs, hired Karen VanLuvender to “assist” Plaintiff in completing some of the duties and

responsibilities of Comptroller, such as preparing financial statements. (Doc. # 32-1 at 28, 38;

Doc. # 47-1 at 2, ¶ 4). VanLuvender still works part-time for Defendant and assists Plaintiff with

certain duties. (Doc. # 32-1 at 27-28).

On February 8, 2015, Noland promoted Plaintiff to the position of Comptroller.4 (Doc. #

32-1 at 18, 26; Doc. # 32-5 at 37; Doc. # 40-4). Plaintiff’s hourly wage increased to $29.42—a

10.87% increase.5 (Doc. # 32-1 at 19; Doc. # 40-6; Doc. # 47-1 at 1-2, ¶ 3). As Comptroller,

Plaintiff’s duties included, among other things, student accounts, accounts payable and

receivable, tax preparation, collections, budget control, financial reporting, and software

3 In 2006, Snow’s annual salary as Comptroller was $80,213.00 (after serving 18 years in that position).

(Doc. # 32-6 at 1, ¶ 3). In her deposition testimony, however, Plaintiff admits that she does not know what Snow’s

annual salary was when he first became Comptroller, nor does she know what his annual salary was throughout his

tenure. (Doc. # 32-1 at 38).

4 Tucker testified that, before her promotion, he recommended to Noland that he “seriously consider

moving [Plaintiff] into . . . [the Comptroller] position with a pay raise.” (Doc. # 32-5 at 38).

5 In relation to the “market value” of the Comptroller position, Edmonds testified that it was “lowered by []

Noland in February 2015 . . . , well before [Plaintiff] made any complaint about her pay [to him]. The adjustment

was made pursuant to a pre-established value developed by a third party several years [prior] that is based, in part,

on the person’s years of experience in the position. Since 2015, the market value of [Comptroller] has increased

annually consistent with the Consumer Price Index. Additionally, with each five years that [Plaintiff] holds the

position, the market value will increase 3% over the Consumer Price Index.” (Doc. # 47-1 at 2, ¶ 5).

development (for budgeting purposes in each department).6 (Doc. # 32-1 at 36-27, 45; Doc. # 40-

2). In the Spring of 2017, Plaintiff also helped with training administration staff on the new

budget system. (Doc. # 32-3 at 26).

Effective June 1, 2017, Plaintiff switched from being an hourly employee to a salaried

employee. (Doc. # 32-1 at 19; Doc. # 40-8). With this change, Plaintiff’s annual salary was

raised to $75,000—a 15.75% increase.7 (Doc. # 32-1 at 19; Doc. # 40-8; Doc. # 47-1 at 1-2, ¶ 3).

As Comptroller, Plaintiff’s supervisor is Lawson C. Edmonds, the Vice President of

Financial Affairs for the University. (Doc. # 32-2 at 8). Edmonds served in that position in an

interim capacity from January 2017 until January 2018, when he became full time. (Doc. # 32-2

at 9). Edmonds replaced Nolan. (Doc. # 32-3 at 16-17). As of September 13, 2019, Edmonds’s

annual salary was $135,000, which is approximately $15,000 less than Nolan’s salary was at the

time of his death, and Nolan had been the University’s Vice President of Financial Affairs for

more than 30 years. (Doc. # 32-6 at ¶¶ 4-5; Doc. # 40-9).

In the Spring of 2017,8 Plaintiff met with Edmonds and requested an increase to her

salary, noting the disparity between her salary and that of her predecessor, Snow. (Doc. # 32-1 at

6 Plaintiff testified that the software development aspect of her job was a duty that was added to the

Comptroller position after she was promoted (i.e., after Snow retired). (Doc. # 32-1 at 37). Additionally, as

Comptroller (and at the request of Edmonds), Plaintiff prepared budget reports, which was a duty previously

reserved for the Vice President of Financial Affairs; not the Comptroller. (Doc. # 32-1 at 51-53). Plaintiff also

testified that even before she became Comptroller, she was “reconcil[ing] all [T]itle IV accounts and prepar[ing] …

G5 drawdowns on a quarterly basis” for federal funding—but this was already a duty generally reserved for the

Comptroller. (Doc. # 32-1 at 50, 54).

7 Edmonds testified that he approached Plaintiff in the Spring of 2017 and asked her if she would like to

move from hourly to salaried. (Doc. # 32-3 at 27). This timeframe corresponds to when Plaintiff was switched to a

salaried employee and began making $75,000, annually. (Id. at 28). Edmonds testified that he came up with this

number by going “back and look[ing] at what she had made the year before by working overtime,” which was

around $71,000. (Id.). So Edmonds “gave her a boost to cover what [he] thought [Plaintiff] could possibly do –

make more than she would in overtime,” and that was the last time they discussed salary rate until the following

year. (Id.).

8 This date is unclear in the Rule 56 record. In Plaintiff’s deposition, she testified that she first spoke to

Edmonds on March 13, 2018 (Doc. # 32-1 at 86); however, Edmonds and Tucker testified that the first time Plaintiff

spoke to Edmonds was in the Spring of 2017. (Doc. # 32-3 at 27; Doc. # 32-5 at 19).

81-84, 86). She also provided Edmonds with a list of comparable positions and salaries at other

Alabama state institutions, including the University of North Alabama, Jacksonville State

University, the University of Montevallo, Alabama A&M, Troy University, and the University of

South Alabama.9 (Doc. #32-1 at 81, 101-07; Doc. # 40-22 at 5). In response to her request,

Edmonds told her that he had already spoken to Kenneth Tucker -- the President of the

University -- “about her salary and [her] increased workload,” and that he “planned to discuss it

again during the budget proceedings.” (Doc. # 32-1 at 86). Edmonds also told her he did not

believe he could get her salary to what Snow’s was, but that he “was hoping to get [her] $10,000

more.” (Doc. # 32-1 at 86).

On March 20, 2018, Plaintiff met with Edmonds again. He told her that, after speaking

with Tucker, they realized they could not give her a pay increase until the next budget year, but

that she would receive a raise because the University values “her contributions . . . and [they]

wanted to honor her request if [they] could reasonably and fairly do so.” (Doc. # 32-1 at 89; Doc.

# 32-3 at 32; Doc. # 32-5 at 31). Importantly, around this same time, the University was “going

through a severe budgetary crisis,” and “no other employee was being [given] [a] raise[].”10

(Doc. # 32-5 at 22). Tucker testified that “[t]he [U]niversity was losing between 3.8 million and

5.8 million dollars a year for the last six or seven years. That [was] the situation that [his]

administration inherited.” (Doc. # 32-5 at 23; Doc. # 40-23 at 5, ¶ 12). The financial records that

9 Edmonds testified that the institutions Plaintiff referenced were not comparable because they are “all

larger institutions with larger budgets.” (Doc. # 32-3 at 42). Tucker agreed, testifying that these were “apples to

oranges” comparisons. (Doc. # 32-5 at 41). The University has an enrollment of approximately 4,500 online and on-

campus students. (Doc. # 32-1 at 103).

10 Edmonds also testified that he told Plaintiff that the University was not “giving any raises to anyone,”

and that “[a]s a matter of fact, [they were not] filling positions” because of budgetary constraints. (Doc. # 32-3 at

29). This was the case notwithstanding the fact that between July 2016 and December 2018, Edmonds received four

raises related to changes in his duties or the scope of his position. (Doc. # 32-3 at 50-53). Edmonds testified that

Noland issued the first pay raise because Edmonds had taken on many more responsibilities since Snow’s

retirement. (Doc. # 32-3 at 50). Additionally, one pay raise was due to Edmonds becoming the interim Vice

President of Financial Affairs, and the last one was due to him becoming the permanent Vice President. (Doc. # 32-3

at 53).

Plaintiff produced show that in 2013 the University’s Fiscal Year End Cash Flow (in thousands

of dollars) was $26,057,000 and the Operating Cash Flow was $(19,144,000) (Doc. # 40-16 at

26); in 2014, the Fiscal Year End Cash Flow was $21,229,000 and the Operating Cash Flow was

$(21,147,000) (Doc. # 40-17 at 26); in 2015, the Fiscal Year End Cash Flow was $19,551,000

and the Operating Cash Flow was $(14,856,000) (Doc. # 40-18 at 24); in 2016, the Fiscal Year

End Cash Flow was $15,642,000 and the Operating Cash Flow was $(18,114,000) (Doc. # 40-19

at 24); and in 2017, the Fiscal Year End Cash Flow was $14,757,000 and the Operating Cash

Flow was $(19,436,000) (Doc. # 40-20 at 11).11

Nevertheless, Edmonds told Plaintiff that, while her pay increase would not amount to

Snow’s salary, “it would be [] noticeable.” (Doc. # 32-1 at 89). Plaintiff testified that she does

not recall if at any point during these two discussions she told Edmonds that she believed the pay

disparity was because she is a woman. (Doc. # 32-1 at 84). To be sure, when asked if she had any

recollection that she told Edmonds on either occasion that she thought the pay disparity between

her and Snow was due to her gender, she testified that she did not recall, followed by her

statement, “No . . . I did not use those exact words, no, I did not.” (Doc. # 32-1 at 93). Moreover,

with respect to the pay disparity, Tucker testified that Plaintiff was not compensated at the same

rate as Snow due to “the large disparity in experience in that role performing those duties and

responsibilities, and concomitant with that would be knowledge, skills, and ability borne of

11 The court notes that, at present, although Defendant asserts there may be some question as to whether

these “public financial records” will be admissible (for lack of authentication), they could be reduced to an

admissible form at trial. See Riley v. University of Ala. Health Servs. Found., P.C., 990 F. Supp. 2d 1177, 1184

(N.D. Ala. 2014) (“[W]hen deciding a motion for summary judgment, a district court may not consider evidence

which could not be reduced to an admissible form at trial.”) (quoting Macuba v. Deboer, 193 F.3d 1316, 1323 (11th

Cir. 1999)). And, assuming, without deciding, these financial documents are admissible, they support Defendant’s

position that it was experiencing substantial financial hardship. While Plaintiff confuses the issues in her Affidavit

(i.e., by discussing the “total-debt-to-total-asset ratios, the University’s “reserves,” and the University’s Net

Position), based on the relevant information (that is, the year end cash flow and operating cash flow), there is no

question that Defendant faced financial hardship between 2013 and 2017.

length of service performing those duties and responsibilities in that role, as well as budgetary

constraints.” (Doc. # 32-5 at 46).

On April 24, 2018, Plaintiff again met with Edmonds to discuss student deregistration.

Plaintiff testified that she also requested a pay increase during this meeting. (Doc. # 32-1 at 109-

10). But again, there is no indication that on this occasion she told Edmonds she believed the pay

disparity was because of her gender. (Doc. # 32-1 at 97-99). Edmonds is the only person Plaintiff

ever spoke to about her salary (Doc. # 32-1 at 100-01, 118), and Plaintiff testified that no aspect

of her position changed (and no one began treating her any differently) after her discussions with

Edmonds. (Doc. # 32-1 at 111). Rather, consistent with Edmonds assurances, effective October

1, 2018, Plaintiff received an $8,000 pay increase (or 10.67%), raising her annual salary to

$83,000. (Doc. # 32-1 at 94; Doc. # 32-3 at 32-33; Doc. # 40-10; Doc. # 47-1 at 1-2, ¶ 3).

On June 1, 2018, Plaintiff filed a Charge of Discrimination with the Equal Employment

Opportunity Office (“EEOC”), alleging sex discrimination and retaliation under Title VII of the

Civil Rights Act of 1964, as amended, and the Equal Pay Act of 1963, as amended. (Doc. # 20-1;

Doc. # 40-22). Plaintiff filed her initial Complaint in this case on June 12, 2018 (Doc. # 1), and

on June 14, 2018, she filed an amended EEOC Charge (Doc. # 20-2). On October 9, 2018,

Plaintiff received her Right to Sue letter. (Doc. # 20-3).

II. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

party asking for summary judgment always bears the initial responsibility of informing the court

of the basis for its motion and identifying those portions of the pleadings or filings which it

believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the moving

party has met its burden, Rule 56 requires the non-moving party to go beyond the pleadings and -

- by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file --

designate specific facts showing that there is a genuine issue for trial. Id. at 324.

The substantive law will identify which facts are material and which are irrelevant. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts

about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v.

Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of

Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If

the evidence is merely colorable, or is not significantly probative, summary judgment may be

granted. See id. at 249.

When faced with a “properly supported motion for summary judgment, [the nonmoving

party] must come forward with specific factual evidence, presenting more than mere

allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson

teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations made in the

complaint; instead, as the party bearing the burden of proof at trial, she must come forward with

at least some evidence to support each element essential to her case at trial. See Anderson, 477

U.S. at 252. “[A] party opposing a properly supported motion for summary judgment ‘may not

rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts

showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).

Summary judgment is mandated “against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be

granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”

Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477

U.S. at 250-51).

“[A]t the summary judgment stage the judge’s function is not himself to weigh the

evidence and determine the truth of the matter but to determine whether there is a genuine issue

for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents

a sufficient disagreement to require submission to the jury or whether it is so one-sided that one

party must prevail as a matter of law.” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477

U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)

(“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a

motion for summary judgment.”).

The Eleventh Circuit has interpreted Celotex to require that, as to issues on which the

movant would bear the burden of proof at trial, a

party must show affirmatively the absence of a genuine issue of material fact: it

must support its motion with credible evidence . . . that would entitle it to a

directed verdict if not controverted at trial. In other words, the moving party must

show that, on all the essential elements of its case on which it bears the burden of

proof at trial, no reasonable jury could find for the non-moving party. If the

moving party makes such an affirmative showing, it is entitled to summary

judgment unless the non-moving party, in response, come[s] forward with

significant, probative evidence demonstrating the existence of a triable issue of

fact.

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (quoting U.S. v. Four Parcels

of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991)).

III. Discussion

Plaintiff’s First Amended Complaint advances four causes of action: (1) Gender

Discrimination in violation of the Equal Pay Act (“EPA”); (2) Retaliation in violation of the

EPA; (3) Disparate Treatment – Gender Discrimination in violation of Title VII; and (4)

Retaliation in violation of Title VII. (Doc. # 20). The court first addresses Plaintiff’s EPA claim

asserted in Count One. It then analyzes her Title VII pay discrimination claim advanced in Count

Three. Finally, it concludes by assessing her retaliation claims asserted in Counts Two and Four.

After careful review, the court concludes that Defendant’s Motion for Summary Judgment (Doc.

# 30) is due to be granted.

A. Plaintiff’s Pay Discrimination Claims

Before the court analyzes each cause of action, however, it is helpful to review the

differences between the EPA and Title VII pay discrimination claims, as they involve different

burdens of proof.

The Equal Pay Act was directed only at wage discrimination between the sexes

and forbids the specific practice of paying unequal wages for equal work to

employees of the opposite sex. Title VII, on the other hand, forbids discrimination

on the basis of gender, race, or national origin in a wide range of employment

practices, including hiring, firing, training, and promoting. . . .

. . .

. . . A plaintiff suing under the Equal Pay Act must meet the fairly strict standard

of proving that she performed substantially similar work for less pay. The burden

then falls to the employer to establish one of the four affirmative defenses

provided in the statute. Under the disparate treatment approach of Title VII,

however, there is a relaxed standard of similarity between male and female-

occupied jobs, but a plaintiff has the burden of proving an intent to discriminate

on the basis of sex (or race or national origin). . . .

. . .

[Overall,] Title VII and the Equal Pay Act exist side by side in the effort to rid the

workforce of gender-based discrimination. Plaintiffs have two tools for relief,

each of which provides different burdens of proof and may produce different

amounts of compensation. If a defendant has both violated the Equal Pay Act and

denied a woman a promotion because of her sex, the plaintiff may sue for relief

under both statutes and is entitled to recovery for both injuries, if she satisfies the

requirements of both laws.

In Alexander v. Gardner–Denver Co., 415 U.S. 36 (1974), the Supreme Court

held that Title VII was intended to “supplement, rather than supplant, existing

laws and institutions relating to employment discrimination” and that “the

legislative history of Title VII manifests a congressional intent to allow an

individual to pursue independently his rights under both Title VII and other

applicable federal statutes.”

Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1526-27 (11th Cir. 1992) (internal

footnotes and citations omitted) (citing Waters v. Turner, 874 F.2d 797, 801 n.10 (11th Cir.

1989)). With this backdrop, the court begins its analysis by examining Plaintiff’s EPA claim and

then addressing her related pay claim under Title VII.

1. Plaintiff’s Claim of Gender Discrimination in Violation of the EPA

In Count One of Plaintiff’s First Amended Complaint, she contends that Defendant

discriminated against her because of her gender “by compensating her in a manner less than that

of male employees for substantially similar duties, the performance of which required similar

skill, effort, and responsibility, and which are performed under similar working conditions.”

(Doc. # 20 at 5, ¶ 23). Defendant asserts that Plaintiff’s prima facie case fails because she cannot

present substantial evidence that she and Snow (the only alleged comparator) performed equal

work requiring equal skill, effort, and responsibility. (Doc. # 31 at 11).

The EPA, which is a part of the Fair Labor Standards Act, is “directed only at wage

discrimination between the sexes and forbids the specific practice of paying unequal wages for

equal work to employees of the opposite sex.” Miranda, 975 F.2d at 1526; see 29 U.S.C. §

206(d)(1). To establish a prima facie case under the EPA, a plaintiff “must show that an

employer pays different wages to employees of opposite sexes ‘for equal work on jobs[,] the

performance of which requires equal skill, effort, and responsibility[] and which are performed

under similar working conditions.’” Miranda, 975 F.2d at 1532 (quoting Corning Glass Works v.

Brennan, 417 U.S. 188, 195 (1974)). “A plaintiff establishes a prima facie case by comparing the

job[] held by the female and male employee[], and by showing that those jobs are substantially

equal, not by comparing the skills and qualifications of the individual employees holding those

jobs.” Id. at 1533 (citation omitted). If a plaintiff can make out a prima facie case,

the burden shifts to the employer to prove [by a preponderance of the evidence]

that the difference in pay is justified by one of . . . four exceptions . . . : “(i) a

seniority system; (ii) a merit system; (iii) a system which measures earnings by

quantity or quality of production; or (iv) a differential based on any other factor

other than sex.”

Id.; see Steger v. General Elec. Co., 318 F.3d 1066, 1078 (11th Cir. 2003). Put another way,

“[o]nce the disparity in pay between substantially similar jobs is demonstrated, the burden shifts

to the defendant to prove that a ‘factor other than sex’ is responsible for the differential.”

Miranda, 975 F.2d at 1533 (citing Mitchell v. Jefferson Cty. Bd. of Educ., 936 F.2d 539 (11th

Cir. 1991)). “The burden to prove these affirmative defenses is heavy and must demonstrate that

‘the factor of sex provided no basis for the wage differential.’” Steger, 318 F.3d at 1078 (quoting

Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995)) (emphasis in original). And, “[a]lthough an

employer may not rely on a ‘general practice’ as a factor ‘other than sex,’ it may consider

factors such as the ‘unique characteristics of the same job; . . . an individual’s experience,

training[,] or ability; or . . . special exigent circumstances connected with the business.’” Id.

(quoting Irby, 44 F.3d at 955) (emphasis in original) (internal citation omitted). “Once the

employer’s burden is met, the employee ‘must rebut the explanation by showing with affirmative

evidence that it is pretextual or offered as a post-event justification for a gender-based

differential.’” Id. (citing Irby, 44 F.3d at 954).

a. Plaintiff Has Presented a Prima Facie Case Under the EPA

The court concludes that Plaintiff has presented a prima facie case under the EPA. The

only comparator Plaintiff has proffered is her predecessor, Snow. Defendant argues that Plaintiff

did not operate under “similar working conditions” because Plaintiff had the assistance of

VanLuvender, and her predecessor, Snow, did not. However, the Rule 56 evidence suggests

otherwise. Plaintiff testified that VanLuvender merely assisted (as opposed to “trained”) her with

preparing the financial statements during 2014, and that she now only assists “as needed.” (Doc.

# 32-1 at 29). The court concludes that recruiting another employee for short-term assistance

does not negate the fact that Plaintiff, while working as Comptroller, performed substantially the

same duties as Snow did while he was employed as Comptroller. Additionally, it is undisputed

that Plaintiff assisted Snow with many of his duties while he was battling his illness.

Under the EPA, “the controlling factor . . . is job content—the actual duties that the

respective employees are called upon to perform.” Miranda, 975 F.2d at 1533 (citation omitted).

The Rule 56 record demonstrates that Plaintiff was performing most of the duties and

responsibilities of Comptroller before she formally filled that position, and she continued to

perform those duties and responsibilities, with the addition of even more, once she formally

became Comptroller. Edmonds even testified that “the duties and responsibilities of

[C]omptroller [were] pretty much the same for [Plaintiff] as they were for [] Snow.” (Doc. # 32-3

at 34). As such, it is readily apparent that Plaintiff’s position as Comptroller is sufficiently

similar to Snow’s position as Comptroller. Therefore, the court concludes that she has

established a prima facie case of gender discrimination under the EPA.

b. Defendant Has Articulated Legitimate, Non-Discriminatory

Reasons for Plaintiff’s Lower Pay, and Plaintiff Has Failed to

Show that Defendant’s Reasons are Pretext for Pay

Discrimination Under the EPA

Because Plaintiff has established a prima facie case, the burden shifts to Defendant to

establish that the difference in pay is justified by: (1) a seniority system; (2) a merit system; (3) a

system which measures earnings by quantity or quality of production; or (4) a differential based

on any other factor other than sex. Miranda, 975 F.2d at 1533. This burden is “a heavy one,”

because “the exceptions granted within the EPA constitute affirmative defenses.” Mulhall v.

Advance Sec., Inc., 19 F.3d 586, 590 (11th Cir. 1994) (citing Corning Glass Works, 417 U.S. at

196-97); see Butler v. Albany Int’l, 273 F. Supp. 2d 1278, 1290 (M.D. Ala. 2003) (citation

omitted). Defendant contends that Plaintiff was paid less than Snow due to his 27 years of

experience as Comptroller as compared to her four years of experience in that position. (Doc. #

31 at 12). Specifically, Tucker testified that Plaintiff was not compensated at the same rate as

Snow due to “the large disparity in experience in that role performing those duties and

responsibilities, and concomitant with that would be knowledge, skills, and ability borne of

length of service performing those duties and responsibilities in that role, as well as budgetary

constraints.” (Doc. # 32-5 at 46).

Under Eleventh Circuit case law, “[e]xperience is an acceptable factor other than sex if

not used as a pretext for differentiation because of gender.” Irby, 44 F.3d at 956 (citation

omitted). Here, Defendant repeatedly stated that Plaintiff was not paid the same salary as Snow

because of his 27-year tenure, as well as the fact that the University was going through a severe

budgetary crisis. Plaintiff compares her salary as a fairly new Comptroller (on the job less than

five years) to Snow’s pay at the point when he had held the position for nearly three decades.

That is apples and oranges, even though they had the same job at different points in time. And,

even if that were not enough to distinguish the two (and, it is), she requested substantial pay

increases when the University was hemorrhaging money. Considering the entirety of the Rule 56

record, and viewing it in the light most favorable to Plaintiff, neither of those reasons indicate

that gender was a motivating factor in Defendant’s decision regarding Plaintiff’s salary.

Moreover, Plaintiff has failed to rebut Defendant’s reasons. Not only is the Rule 56

record devoid of even a hint of gender animus in determining Plaintiff’s salary, but she has failed

show that she had “equal or more experience of the same type” as Snow. Blackman v. Florida

Dep’t of Bus. & Prof’l Regulation, 599 F. App’x 907, 912 (11th Cir. 2015) (quoting Irby, 44

F.3d at 956). She has also failed to suggest, let alone show, that Defendant’s reasons were merely

offered as a post-event justification for a gender-based differential.

Consequently, Plaintiff has failed to establish the existence of a genuine issue of material

fact requiring resolution by a jury. Ponamgi v. Safeguard Servs., LLC, 558 F. App’x 878, 880

(11th Cir. 2014) (citation omitted). Therefore, Defendant’s Motion for Summary Judgment (Doc.

# 30) is due to be granted as to Count One.

2. Plaintiff’s Claim of Disparate Treatment Gender Discrimination (as

to Compensation) in Violation of Title VII

In Count Three of Plaintiff’s Amended Complaint, she alleges that Defendant

“discriminated against [her] on the basis of gender by compensating her in a manner less than

that of male employees for substantially similar duties.” (Doc. # 20 at 7, ¶ 30). While Plaintiff

uses the phrase “male employees” (plural), it is clear from her deposition testimony that the only

comparator here is her predecessor, Snow. (Doc. # 32-1 at 154-55).

“Under Title VII, it is unlawful for an employer to discriminate against an employee on

the basis of [her] gender with respect to the terms and conditions of [her] employment, including

compensation.” Mahone, 2018 WL 1526336, at *7 (citing 42 U.S.C. § 2000e-2(a)); Gooden v.

Internal Revenue Serv., 679 F. App’x 958, 964 (11th Cir. 2017). The Eleventh Circuit has held

that “the McDonnell Douglas/Burdine12 approach to disparate treatment is the appropriate

framework for evaluating [a plaintiff’s] claim of gender-based wage discrimination,” Miranda,

975 F.2d at 1528 (citation omitted), but “the burden of showing the similarity of work performed

by a female plaintiff and a male comparator is ‘more relaxed’ under Title VII than under the

EPA.” Woodard v. Medseek, Inc., 178 F. Supp. 3d 1188, 1199 (N.D. Ala. 2016) (quotation

omitted).

Where there is no direct evidence of discrimination (and, to be sure, that is the case here),

the McDonnell Douglas framework is applied. Miranda, 975 F.2d at 1528 (citation omitted). In

order to establish a prima facie case, “a plaintiff must establish that (1) she belongs to a [gender]

minority; (2) she received low wages; (3) similarly situated comparators outside the protected

class received higher compensation; and (4) she was qualified to receive the higher wage.”

Cooper v. Southern Co., 390 F.3d 695, 735 (11th Cir. 2004), overruled on other grounds by Ash

v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006) (citing Miranda, 975 F.2d at 1528 (dealing with a

pay discrimination claim based on gender) and MacPherson v. University of Montevallo, 922

F.2d 766, 774 (11th Cir. 1991) (dealing with a pay discrimination claim based on age)); see

Reddy v. Alabama Dep’t of Educ., 808 F. App’x 803, 811 (11th Cir. Apr. 2, 2020) (“To

[establish a Title VII disparate pay claim], the plaintiff must show that she was a qualified

member of a protected class and subjected to an adverse employment action in contrast to [a]

similarly situated employee[] outside [her] protected class.”) (citing Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010)). The third factor in the Title VII prima

facie test (i.e., a similarly situated comparator) is interpreted “less stringently. In this context, a

plaintiff satisfies [her] prima facie burden of comparability simply by showing that [s]he

12 See McDonnell Douglas v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248 (1981).

‘occupies a job similar to that of higher paid’ persons outside the protected class.” Sharpe v.

Global Sec. Int’l, 766 F. Supp. 2d 1272, 1294-95 (S.D. Ala. 2011) (quoting Meeks v. Computer

Assoc. Int’l, 15 F.3d 1013, 1019 (11th Cir. 1994)); see Ledbetter v. Goodyear Tire & Rubber

Co., 421 F.3d 1169, 1185 (11th Cir. 2005) (quoting Meeks, 15 F.3d at 1019). So, as one court has

put it, while “[t]he Equal Pay Act requires a plaintiff to meet a ‘fairly strict’ burden of proving

she did ‘substantially similar’ work for less pay. . . . Title VII requires a plaintiff to show a more

‘relaxed standard of similarity’ between the jobs.” Rollins v. Alabama Community College Sys.,

814 F. Supp. 2d 1250, 1267 (M.D. Ala. 2011) (citations omitted).

Particularly before last year, Eleventh Circuit caselaw was less than clear as to what

comparator standard should be applied in pay discrimination claims. Previously, one panel (in an

unpublished decision) suggested that the “strict” comparator standard be used in the context of

pay discrimination claims. See Hill v. Emory Univ., 346 F. App’x 390 (11th Cir. 2009), cert.

denied, 559 U.S. 991 (2010). This “strict” standard refers to the prior test that a comparator must

be “similarly situated in all relevant respects.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1091 (11th Cir. 2004), abrogated by Lewis v. City of Union City, Ga., 918 F.3d 1213 (11th Cir.

2019). But, this so-called “strict” test was altered by Lewis. Now, the rule is that a proffered

comparator must be “similarly situated in all material respects.” Lewis, 918 F.3d at 1218

(emphasis added). Another court in this Circuit recently dealt with a pay claim post-Lewis. See

Vinson v. Macon-Bibb Cty., 2020 WL 2331242, at *4 (M.D. Ga. May 11, 2020). The Vinson

court cited Lewis in analyzing the third factor of the prima facie case, evaluating whether the

plaintiff “present[ed] a comparator who received higher compensation.” Vinson, 2020 WL

2331242, at *4 (emphasis in original) (quoting Walker, 624 F. App’x at 686). Although the

Vinson court did not delve into the similarities that are generally necessary to establish a

comparator under Lewis, it did adhere to Lewis’s instruction that a plaintiff and a proffered

comparator must be “sufficiently similar . . . that they ‘cannot reasonably be distinguished.’”

Lewis, 918 F.3d at 1228 (citation omitted).

The court cannot conceive of any principled reason why Lewis does not apply to a pay

discrimination claim. If the plaintiff and her comparator are not sufficiently similar, the singular

fact that they are paid at different rates does not raise any inference of discrimination. Therefore,

caselaw suggests that even applying Lewis -- which appears to be the proper course of action

here -- the key question is whether a plaintiff has shown a sufficiently similar comparator who

received higher compensation such that the circumstances give rise to an inference of unlawful

discrimination.

If the plaintiff makes such a showing, the burden shifts to the defendant to articulate a

legitimate, non-discriminatory reason for the adverse employment action. McDonnell Douglas,

411 U.S. at 802; Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc). “This

burden is ‘exceedingly light’; the defendant must merely proffer non-gender based reasons, not

prove them.” Meeks, 15 F.3d at 1019. If the employer satisfies that burden, the presumption of

discrimination is rebutted, and the plaintiff must offer evidence from which a reasonable jury

could find that the employer’s supposedly legitimate reason is merely a pretext for unlawful

discrimination. Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994); Perryman v.

Johnson Prods. Co., 698 F.2d 1138, 1141-42 (11th Cir. 1983). If the proffered reason is one that

might motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it “head

on and rebut it.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

a. Plaintiff Has Failed to Establish a Prima Facie Case of

Disparate Treatment Gender Discrimination

Here, it is undisputed that Snow, a male, received higher wages than Plaintiff, a female.

But, Defendant asserts that Snow is not an appropriate comparator. Under Lewis, a proffered

comparator must be “similarly situated in all material respects.” 918 F.3d at 1218. As stated

above, under this standard, “a plaintiff is required ‘to present a comparator who received higher

compensation.’” Vinson, 2020 WL 2331242, at *4 (emphasis omitted) (citation omitted).

However, adhering to Lewis, a plaintiff and a proffered comparator “must be sufficiently similar,

in an objective sense, that they ‘cannot reasonably be distinguished.’” Lewis, 918 F.3d at 1228

(citation omitted). Indeed, the intent behind the McDonnell Douglas prima facie case is to

“‘eliminate[] the most common nondiscriminatory reasons’ for the employer’s treatment of the

plaintiff—and in so doing ‘give[] rise to an inference of unlawful discrimination.’” Lewis, 918

F.3d at 1222 (emphasis added) (quoting Burdine, 450 U.S. at 253-54) (citations omitted).

Here, the court concludes that Plaintiff has failed to establish a valid comparator, and, as

such, has failed to establish a prima facie case. That is, she has failed to raise an inference of

unlawful discrimination. Although Plaintiff occupies the Comptroller position and makes

approximately $16,822.00 less than her predecessor, Snow held the Comptroller position for 27

years. (Doc. # 40-22 at 3). Plaintiff has only formally held the position for less than five years. It

is clear that the similarities between Plaintiff and Snow end at their job title.

In Lewis, the Eleventh Circuit emphasized that the “similarly situated in all material

respects” standard “serves the interest of sound judicial administration by allowing for summary

judgment in appropriate cases—namely, where the comparators are simply too dissimilar to

permit a valid inference that invidious discrimination is afoot.” Lewis, 918 F.3d at 1228-29

(emphasis in original) (footnote omitted). This is one of those cases where the comparator (here,

Snow) is too dissimilar to permit an inference of discrimination.13

13 The court has concluded that Plaintiff established a prima facie case under the EPA, yet failed to

establish a prima facie case of pay discrimination under Title VII. While this may seem counterintuitive in light of

b. Defendant Has Proffered Legitimate, Non-Discriminatory

Reasons for the Pay Disparity, and Plaintiff Has Failed to

Show that Those Proffered Reasons are Pretext for Unlawful

Discrimination

The court has concluded that for purposes of Title VII, Plaintiff has not established a

prima facie case of pay discrimination because Snow is not a valid comparator. But, even if she

had been able to successfully do so, it is equally clear that Defendant has articulated legitimate,

non-discriminatory reasons for not paying Plaintiff the same salary as Snow. So, the burden

would shift back to Plaintiff to show those reasons are a pretext for gender discrimination. In the

interest of a complete analysis, the court addresses the pretext question.

Both Tucker and Edmonds testified that Plaintiff’s salary is not equal to Snow’s salary

because (1) Snow had 27 years of experience in the Comptroller position, as opposed to

Plaintiff’s roughly four years (currently), and (2) the University was experiencing great financial

hardship that limited its ability to give raises to Plaintiff and others. These are legitimate, non-

discriminatory reasons for the disparity between Plaintiff’s salary and that of Snow. See Barber

v. Int’l Bhd. of Boilermakers, 778 F.2d 750, 760-61 (11th Cir. 1985) (concluding that an

employee’s allegedly greater experience was a legitimate, non-discriminatory reason for his

increased wages and sufficient to rebut the plaintiff’s prima facie case). Further, “Title VII does

not allow federal courts to second-guess nondiscriminatory business judgments, nor does it

replace employers’ notions about fair dealing in the workplace with that of judges. [The court is]

not a ‘super-personnel department’ assessing the prudence of routine employment decisions, ‘no

matter how medieval,’ ‘high-handed,’ or ‘mistaken.’” Flowers v. Troup Cty, Ga., Sch. Dist., 803

Eleventh Circuit precedent suggesting that the prima facie standard in a Title VII pay discrimination case is laxer

than the EPA standard, this is the right result here. The EPA prima facie standard -- though stricter than Title VII in

a general sense -- focuses on the similarities between job duties. Here, Plaintiff and Snow held the same position and

performed substantially similar duties, but Plaintiff was is paid less. Thus, it is readily apparent that Plaintiff can

satisfy the EPA prima facie standard. However, under the Title VII prima facie standard, Lewis mandates that a

plaintiff proffer a comparator who is similarly situated in all material respects, an inquiry that the court does not

address in the EPA setting until it assesses the employer’s defense.

F.3d 1327, 1338 (11th Cir. 2015) (quoting Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,

1266 (11th Cir. 2010)). Because Defendant has articulated legitimate, non-discriminatory

reasons for the disparity between Plaintiff’s salary and Snow’s, the burden shifts back to Plaintiff

to show that Defendant’s proffered reasons are a pretext for unlawful discrimination. Smith v.

Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011).

In her opposition brief, Plaintiff contends that Tucker and Edmonds arbitrarily calculated

Plaintiff’s salary, which is evidence of pretext. This argument holds no water. Again, Title VII

precludes courts from second-guessing non-discriminatory business judgments. Here, the Rule

56 record reflects that the reasons that Plaintiff’s salary was less than Snow’s are non-

discriminatory and an exercise of business judgment. With respect to her salary when she was

switched from an hourly employee to a salaried employee, Edmonds testified that he came up

with the $75,000.00 figure by going “back and look[ing] at what she had made the year before

[including] working overtime,” which was around $71,000. (Doc. # 32-3 at 27). Edmonds

testified that he “gave [Plaintiff] a boost to cover what [he] thought [Plaintiff] could possibly . . .

make more than she would in overtime.” (Id.). There is no Rule 56 evidence showing that gender

was considered in this calculation.

Plaintiff also complains about her receipt of an $8,000 raise. She notes that Tucker

testified that he does not recall how he and Edmonds determined this number or the factors on

which they based that decision. (Doc. # 32-5 at 32). And, she points out that Tucker also testified

that he did not undertake an effort to ascertain what salary Plaintiff should receive, and he did

not request Edmonds to do so either. (Doc. # 32-5 at 31). Nonetheless, Plaintiff has failed to

show how this lack of analysis or evaluation on Defendant’s part supports an inference that her

gender was considered in this calculation. It may not be good HR or compensation policy; but, it

is not indicative of gender discrimination.

Plaintiff next contends that Defendant’s reasons for the pay disparity between herself and

Snow are pretextual because Edmonds received four raises in an 18-month period and Tucker

received at least two raises between 2015 and 2016, all while Defendant was experiencing

financial hardship. However, Plaintiff’s argument misses the mark. Edmonds’s salary, as her

supervisor, is not comparable (or relevant) to Plaintiff’s salary, and Tucker’s salary, as President,

is set by the Board of Trustees, which is clearly in no way comparable to Plaintiff’s salary. (Doc.

# 32-5 at 39). Plaintiff has also failed to assert where the funds for Edmonds’s and/or Tucker’s

salaries are drawn from, and whether those funds affect the amount of pay raises that could be

awarded to Plaintiff—or any other University employee for that matter. Additionally, Plaintiff

contends that budgetary constraints did not impede the University from awarding male

employees bonuses and raises during the time Plaintiff requested the same. However, she

testified that Allison Brantley, a female employee of Defendant, received a $4,000.00 raise, and

Tina Jones, a female, was awarded a promotion that carried with it a $33,856.00 raise, sometime

after June 2018—i.e., the relevant timeframe. (Doc. # 40-23 at 4-5, ¶ 11). This, quite plainly,

cuts against her gender discrimination arguments related to budgetary restraints. And finally,

Plaintiff’s argument also ignores the fact that she received five raises after being placed in the

Comptroller position.

Although Plaintiff may be unhappy with the overall amount of her salary, this, by itself,

does not show that Defendant’s proffered reasons are a pretext for gender discrimination.

Moreover, the financial information contained in Plaintiff’s Affidavit confirms Defendant was in

a cash crunch during the relevant time period. (Doc. # 40-23 at 5, ¶ 12). As such, Plaintiff has

failed to show “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions” in Defendant’s proffered legitimate reasons, and the court concludes that a

reasonable factfinder could not find those reasons unworthy of credence. Alvarez v. Royal

Atlantic Developers, Inc., 610 F.3d 1252, 1265 (11th Cir. 2010) (quoting Combs v. Plantation

Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)).

c. Plaintiff Has Failed to Present Other Circumstantial Evidence

of Disparate Treatment Gender Discrimination

Although it is often useful, the McDonnell Douglas framework “is not the exclusive

means” of prevailing on a Title VII claim based on circumstantial evidence. Vessels v. Atlanta

Indep. Sch. Sys., 408 F.3d 763, 768 n.3 (11th Cir. 2005). A plaintiff’s claim will also survive

summary judgment if she otherwise presents “enough circumstantial evidence to raise a

reasonable inference of intentional discrimination.” Hamilton v. Southland Christian Sch., Inc.,

680 F.3d 1316, 1320 (11th Cir. 2012). This alternative has been referred to as the “mosaic

theory.” See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).

At the outset, the court notes that Plaintiff’s First Amended Complaint centers on the fact

that, although she did, in fact, receive multiple pay raises, they simply were not enough. This

“unhappiness,” by itself, does not indicate that gender was a motivating factor in not raising her

salary to what she would have preferred it to be. Moreover, Defendant reiterated the severity of

the University’s financial situation on numerous occasions. Tucker inherited a poor financial

situation when he became President of the University, and this is evidenced by the fact that, prior

to Edmonds taking over as Vice President for Financial Affairs and Tucker taking over as

President, the University’s “reserves had been depleted” (Doc. # 32-5 at 23), and the University

gave out Christmas bonuses for about four or five years “until [they] discovered [they] did not

have the money out there.” (Doc. # 32-3 at 56-57). Additionally, every year that Tucker has been

President, the University’s financial situation has been “in the red”—that is, their revenues did

not exceed their expenses. (Doc. # 32-5 at 49). Moreover, both Tucker and Edmonds testified

that during the time Plaintiff requested a pay raise, no one was receiving raises. Although

Plaintiff argues that Edmonds and Tucker (the Vice President of Financial Affairs and the

President, respectively) received raises that does not suggest gender discrimination—again,

during that same period, she and two other women (one of them a Board member) also received

raises.

Additionally, Defendant reiterated that Plaintiff was not paid Snow’s salary ($99,822.00)

because, at the time she complained of the pay disparity to Edmonds, she had only been formally

employed as Comptroller for approximately three years, and Snow had served as Comptroller for

27 years. Even though Plaintiff was performing some of Snow’s duties while employed as the

Accounting Supervisor, it is within Defendant’s discretion to set Plaintiff’s salary, and Plaintiff

has failed to show where in Defendant’s calculations it considered her gender.

Viewing all the Rule 56 evidence in the light most favorable to Plaintiff, and for the

reasons indicated above, the court concludes that there is insufficient “other circumstantial

evidence” from which a reasonable jury could conclude that Defendant discriminated against

Plaintiff by paying her less than Snow because she is a woman. Courts are prohibited from

second-guessing a defendant’s business judgment where there is no indication of a

discriminatory motivation. See Pennington, 261 F.3d at 1267 (“[F]ederal courts do not sit to

second-guess the business judgment of employers.”) (quoting Combs, 106 F.3d at 1543). That is

the case here. Plaintiff has fallen far short of presenting sufficient circumstantial evidence of

gender bias to require a jury to resolve her gender discrimination claim before a jury.

B. Plaintiff’s Retaliation Claims Under the EPA and Title VII

In Count Two of Plaintiff’s First Amended Complaint, she alleges that Defendant

retaliated against her by failing to pay her the amount due for the Comptroller position. (Doc. #

20 at 6, ¶ 26). The court notes that the Eleventh Circuit has yet to set out the test for courts to use

in adjudicating a motion for summary judgment on an EPA retaliation claim. See Mahone v.

BBG Specialty Foods, Inc., 2018 WL 1526336, at *14 (M.D. Ala. Mar. 28, 2018). However, two

district courts in this circuit have concluded that, in order to establish an EPA retaliation claim, a

plaintiff must show the same elements that are required to make out a prima facie case for Title

VII retaliation.14 See id. at *14; Saridakis v. South Broward Hosp. Dist., 681 F. Supp. 2d 1338,

1353 (S.D. Fla. 2009) (citing Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005)). The

court finds these cases persuasive and agrees with their analysis. Accordingly, the court analyzes

Plaintiff’s EPA and Title VII retaliation claims together, using the Title VII retaliation

framework.

Title VII makes it unlawful for an employer to discriminate against an employee

“because he has opposed any practice made an unlawful employment practice . . . or because he

has made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding . . . .” 42 U.S.C. § 2000e–3(a). The first subsection is referred to as Title VII’s

opposition clause. “The opposition clause by its very nature focuses upon the motive of the

14 This is the case notwithstanding the fact that the EPA is a part of the Fair Labor Standards Act. But, “the

elements and the burden-shifting paradigm for a claim of retaliation under the FLSA and Title VII are substantively

identical.” Mahone, 2018 WL 1526336, at *14. As the Eleventh Circuit has noted:

The FLSA protects persons against retaliation for asserting their rights under the statute. See 29

U.S.C. § 215(a)(3). A prima facie case of FLSA retaliation requires a demonstration by the

plaintiff of the following: “(1) she engaged in activity protected under [the] act; (2) she

subsequently suffered adverse action by the employer; and (3) a causal connection existed

between the employee's activity and the adverse action.” Richmond v. ONEOK, Inc., 120 F.3d 205,

208-09 (10th Cir. 1997). If the employer asserts a legitimate reason for the adverse action, the

plaintiff may attempt to show pretext. See id. In demonstrating causation, the plaintiff must prove

that the adverse action would not have been taken “but for” the assertion of FLSA rights. See

Reich v. Davis, 50 F.3d 962, 965-66 (11th Cir. 1995).

Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000).

employee, covering only one who ‘has opposed’ any practice which violates Title VII.” Merritt

v. Dillard Paper Co., 120 F.3d 1181, 1187 (11th Cir. 1997). The second subsection is referred to

as the participation clause. “The Participation Clause ‘protects proceedings and activities which

occur in conjunction with or after the filing of a formal charge with the EEOC; it does not

include participating in an employer’s internal, in-house investigation, conducted apart from a

formal charge with the EEOC.’” Anduze v. Florida Atlantic Univ., 151 F. App’x 875, 877 (11th

Cir. 2005) (quoting E.E.O.C. v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir.

2000)).

Claims of retaliation under Title VII follow the McDonnell Douglas burden-shifting

framework. Jackson v. Geo Group, Inc., 312 F. App’x 229, 233 (11th Cir.2009); Goldsmith v.

City of Atmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993). Thus, to establish a prima facie case of

retaliation under Title VII (and, here, the EPA), a plaintiff must show that (1) she engaged in

protected activity; (2) she suffered an adverse employment action by the employer

simultaneously with or subsequent to such opposition or participation; and (3) a causal

connection exists between the protected activity and the adverse employment action. Crawford v.

Carroll, 529 F.3d 961, 970 (11th Cir. 2008). “If a plaintiff establishes a prima facie case of

retaliation and the employer proffers a legitimate, non-discriminatory reason for the adverse

employment action, the plaintiff must then demonstrate that the employer’s proffered

explanation is a pretext for retaliation.” Watson v. Kelley Fleet Servs., LLC, 430 F. App’x 790,

791 (11th Cir. 2011) (citing Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997)).

Plaintiff asserts that Defendant retaliated against her by (1) failing to increase her salary

to that of Snow’s as Comptroller, and (2) lowering the “market value” of her position. Plaintiff

contends Defendant took these allegedly retaliatory actions after she discussed with Edmonds the

disparity between her salary and that of Snow’s in 2017 and 2018, and after she filed her June

14, 2018 amended EEOC Complaint. The court addresses both activities. After doing so, it

concludes that Plaintiff has failed to establish a prima facie case of retaliation with respect to

each claim.

1. Plaintiff’s Protected Conduct

An employee who opposes discrimination is shielded from retaliation, so long as that

opposition is based on both a subjective (good faith) belief and an objective (reasonable) belief

that the employment practice violated Title VII. Bryant v. United States Steel Corp., 428 F.

App’x 895, 897-98 (11th Cir. 2011). Here, Plaintiff first asserts that Defendant retaliated against

her after she spoke with Edmonds in 2017 and 2018 about her compensation by “[n]ot . . .

[paying her] as much as [her] predecessor and [being] asked to take on additional

responsibilities.” (Doc. # 32-1 at 113). Specifically, the Rule 56 record indicates that Plaintiff

first spoke with Edmonds in the Spring of 2017 and requested an increase to her salary, noting

the disparity between her salary and that of her predecessor, Snow. (Doc. # 32-1 at 81-84, 86).

Later, on March 20, 2018, Plaintiff again spoke with Edmonds about her salary. During this

second meeting, Edmonds told Plaintiff she would receive a pay increase at the beginning of the

next fiscal year (as opposed to at that time) due to budgetary constraints. Plaintiff spoke with

Edmonds once again on April 24, 2019. In October 2018, she received an $8,000 pay increase,

but she was still making less than Snow did when he left the Comptroller position. (Doc. # 32-1

at 94; Doc. # 32-3 at 32-33). In her deposition testimony, Plaintiff testified that she “does not

recall” whether she told Edmonds that she believed the pay disparity was because she is a

woman, but that she does not believe she “use[d] those exact words.” (Doc. # 32-1 at 84, 93).

Viewing the Rule 56 record in the light most favorable to Plaintiff, the court has substantial

doubts that Plaintiff’s discussions with Edmonds qualify as protected opposition. Indeed, they do

not appear to. Nevertheless, the court will analyze the other two elements of the test for clarity

and completeness.

Plaintiff also contends that she engaged in protected conduct when she filed her EEOC

Charge on June 1, 2018 (and her amended Charge on June 14, 2018). Unlike her purported

“opposition,” it is undisputed that the filing of her EEOC Charge is clearly protected activity. See

Gray, 756 F. Supp. 2d at 1349. As such, Plaintiff has sufficiently established that she engaged in

protected conduct, and the court analyzes the other two elements of the test as to this claim, too.

2. Adverse Employment Action

Plaintiff must now show that she suffered an actionable adverse employment action. The

standard for what constitutes an adverse employment action in the retaliation context differs

from the standard applied in the discrimination context in that it is much laxer. See Mills v.

Cellco P’ship, 376 F. Supp. 3d 1228, 1244 (N.D. Ala. 2019) (citing Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006)). “In order to constitute an adverse employment action

for purposes of establishing a prima facie case [of retaliation], the action must be materially

adverse from the standpoint of a reasonable employee, such that it would dissuade a reasonable

employee from making a discrimination charge.” Williams v. Apalachee Ctr., Inc., 315 F. App’x

798, 799 (11th Cir. 2009) (citing Burlington N. & Santa Fe Ry. Co., 548 U.S. at 57, 68). “Such a

determination is inherently fact-specific and ‘depend[s] upon the particular circumstances’ of the

case.” Allen, 963 F. Supp. 2d at 1251 (citations and quotation omitted).

Here, the Rule 56 record simply does not support the conclusion that Plaintiff suffered an

adverse employment action. Plaintiff testified that her retaliation claim rests exclusively on

“[n]ot being paid as much as my predecessor and [being] asked to take on additional

responsibilities.” (Doc. # 32-1 at 113). “[C]ontinuing to be paid less than . . . Snow” is not an

actionable adverse employment action. Moreover, after she spoke with Edmonds about her

salary, she received an $8,000.00 raise. In fact, Plaintiff has received approximately five raises,

to date, while employed as Comptroller (Doc. # 32-1 at 68)—all while the University was

experiencing great financial hardship (as evidenced by the public records Plaintiff produced).

While these raises may not have brought her salary to that of Snow’s at the time of his

retirement, by definition, a pay raise is not an adverse employment action.

Next, the undisputed Rule 56 evidence demonstrates that any “additional” responsibilities

Plaintiff assumed occurred before she complained to Edmonds about the pay disparity or filed

her EEOC Complaint.

Further, Plaintiff contends in her opposition brief that “[s]ince filing her EEOC

complaint, the ‘market value’ of the position of Comptroller has been significantly lowered by

the actions of Defendant.” (Doc. # 36 at 28; Doc. # 40-23 at 7, ¶ 17). However, other than the

conclusory statements she has made in her Affidavit (which do not indicate when the “market

value” was lowered), Plaintiff has offered no Rule 56 evidence indicating what the market value

of the Comptroller position is, how it is calculated, how it has fluctuated, or any other pertinent

information that would assist the court in understanding her argument. So, although Plaintiff

testified in her Affidavit that “[t]he market value is now below [her] current salary . . . so [she]

ha[s] no way of receiving an equity raise,” and she is “only eligible to receive future increases

that are given to all employees across-the-board,” there is nothing in the Rule 56 record

supporting this assertion. And, Edmonds’s undisputed testimony refutes the conclusion.

Edmonds testified as follows:

Several people have [received pay raises] through the longevity program we have.

. . . What we have is we have a faculty senate or staff senate that did a study years

ago, and it came up with people’s market values. And every year we take a

formula, and based on what people’s market values are – they’re all small, small

raises. We take the top dollar amount that we have that we’ve allotted to give to

the equity raises, which is usually, say, in the terms of 75, 80,000 dollars. We

divvy it up. It may be among 50 people or more than that. And we bump up their -

to try to get them up to their market value. Every five years, we adjust market

values.

(Doc. # 32-3 at 34). Overall, there is simply no Rule 56 evidence supporting Plaintiff’s “market

value” argument.

Finally, Plaintiff admitted in her testimony that the University did not and has not taken

any negative action against her as a result of her discussions with Edmonds. (Doc. # 32-1 at 113,

128). In order to assert an actionable adverse employment action; there must be an adverse

action. Plaintiff has failed to show any action that could even conceivably be deemed adverse.

And, while Plaintiff testified in her Affidavit that there was an incident involving herself and

Edmonds where he raised his voice on one occasion, under black-letter Eleventh Circuit case

law, such an “incident” does not establish an actionable adverse employment action. To be sure,

Plaintiff testified that Edmonds “came to [her] office, and while standing at [her] office door, he

raised his voice to [her]” and then stormed off. (Doc. # 40-23 at 7, ¶ 18). It is understood that

“Title VII’s anti-retaliation provision does not protect employees from superiors’ occasional

constructive—and even negative—feedback.” Mills v. Cellco P’ship, 376 F. Supp. 3d 1228, 1246

(N.D. Ala. 2019). And while “[t]he Eleventh Circuit has recognized that the Burlington decision

strongly suggests that it is for a jury to decide whether anything more than the most petty and

trivial actions against an employee should be considered “materially adverse,” id. at 1245

(quoting Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008)) (internal quotation marks

omitted), the court concludes that, under the “circumstances of [this] particular case,” Edmonds’s

conduct is, at best, “trivial” and does not amount to an action that would “dissuade[ ] a

reasonable worker from making or supporting a c1harge of discrimination.” Burlington, 548 U.S.

at 68.

The Rule 56 record is clear that, Plaintiff has not established that she suffered any

actionable adverse action that would have dissuaded a reasonable employee from making a

discrimination complaint or charge.

3. Causal Connection

Even assuming, for the sake of argument, that Plaintiff could show that she suffered an

actionable adverse employment action (and, to be clear, she has not made that showing), she

would be required to show that the challenged employment actions were causally related to her

protected conduct. She cannot do so. “A plaintiff may show a causal link with proof that “the

decision-maker became aware of the protected conduct, and that there was close temporal

proximity between this awareness and the adverse employment action.” Farley v. Nationwide

Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999). But, “mere temporal proximity, without

more, must be ‘very close.’” Gray v. City of Montgomery, 756 F. Supp. 2d 1339, 1350 (M.D.

Ala. 2010).

Here, Plaintiff discussed her compensation with Edmonds in the Spring of 2017, on

March 20, 2018, and again on April 24, 2018. After these discussions, on October 1, 2018,

Plaintiff received an $8,000.00 raise. This raise (even if it were too little and even if it could be

deemed “adverse”) occurred too remotely in time to establish any temporal proximity. See

Williams v. Waste Mgmt., Inc., 411 F. App’x 226, 229-30 (11th Cir. Jan. 25, 2011) (holding that

a two-month gap between two events is enough of a delay to preclude an inference of causation).

Moreover, Plaintiff’s contention that the market value for the Comptroller position was lowered

“[s]ince filing her EEOC complaint” is wholly unsupported in the Rule 56 record. According to

Edmonds’s testimony, it was adjusted in February 2015—well before Plaintiff complained to

Edmonds or filed her EEOC Charge. Simply put, there is no adverse employment action that is

even arguably causally connected to any protected conduct. Consequently, the court concludes

that Plaintiff has failed to establish a prima facie case of Title VII/EPA retaliation.

Finally, even if Plaintiff had established a prima facie case of retaliation (and to be clear,

she has not), for the reasons discussed above regarding Plaintiff's disparate treatment gender

discrimination claim, Defendant has articulated legitimate, non-retaliatory reasons for the

disparity between Plaintiff's salary and Snow’s salary, and Plaintiff has not shown, in any

manner, that those reasons are pretextual. Therefore, Defendant’s Motion for Summary

Judgment (Doc. # 30) is due to be granted as to Counts Two and Four of Plaintiff's First

Amended Complaint.

IV. Conclusion

For all the foregoing reasons, Defendant’s Motion for Summary Judgment (Doc. # 30) is

due to be granted. An Order consistent with this Memorandum Opinion will be entered.

DONE and ORDERED this July 24, 2020.

UNITED STATES DISTRICT JUDGE

32