Maron v. Virginia Polytechnic Institute & State University , 508 F. App'x 226 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1146
SHANA L. MARON, a/k/a Shana L. Kennedy; ERIN HOFBERG; GETRA
HANES,
Plaintiffs - Appellants,
v.
VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:08-cv-00579-JCT)
Argued: December 4, 2012 Decided: January 31, 2013
Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
ARGUED: Nicholas Woodfield, THE EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellants. Marvin Hudson McClanahan,
BREWSTER, MORHOUS, CAMERON, CARUTH, MOORE, KERSEY & STAFFORD,
PLLC, Bluefield, West Virginia, for Appellee. ON BRIEF: R.
Scott Oswald, THE EMPLOYMENT LAW GROUP, PC, Washington, D.C.,
for Appellants. Kay K. Heidbreder, Mary Beth Nash, VIRGINIA
POLYTECHNIC INSTITUTE & STATE UNIVERSITY, Blacksburg, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
This appeal addresses certain employment discrimination
claims brought by three employees against their former employer.
Shana Maron, Getra Hanes, and Erin Hofberg alleged that Virginia
Polytechnic Institute and State University (Virginia Tech)
violated the Equal Pay Act (EPA), 29 U.S.C. § 206(d), by paying
female employees less than male employees performing the same
work (wage claims). Maron also alleged that Virginia Tech
retaliated against her in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-3(a), based on her reports
of sex discrimination (retaliation claim).
In a jury trial, at the close of the evidence, the district
court determined that Hofberg’s wage claim was time-barred and
entered judgment as a matter of law in favor of Virginia Tech on
that claim. The jury returned verdicts in favor of Maron and
Hanes on their wage claims, awarding them $25,000 and $15,000,
respectively, and awarding Maron $61,000 on her retaliation
claim. After considering Virginia Tech’s post-trial motions,
the district court set aside the verdicts, entering judgment as
a matter of law on Maron’s retaliation claim and granting a new
trial on the wage claims of Maron and Hanes. A second jury
trial resulted in a judgment in favor of Virginia Tech on those
wage claims.
3
On appeal, the plaintiffs challenge the district court’s
decision to set aside the jury verdicts in the first trial, and
the court’s entry of final judgment on Hofberg’s wage claim.
Upon our review, we reverse the district court’s entry of
judgment as a matter of law on Maron’s retaliation claim, affirm
the court’s award of a new trial on Maron’s and Hanes’ wage
claims, and affirm the court’s entry of judgment as a matter of
law on Hofberg’s wage claim on the basis that it was time-
barred.
I.
The evidence regarding the wage claims and the retaliation
claim showed that Maron began working at Virginia Tech in March
2006 as an Assistant Director of Development for Fine and
Performing Arts, with an annual salary of $49,000. Maron’s
salary increased to $57,225 when she changed positions and began
raising funds for the College of Engineering.
In May 2006 and in October 2006, Virginia Tech hired both
Hofberg and Hanes as Regional Directors of Major Gifts. Both
Hofberg and Hanes were paid $53,500 annually.
The plaintiffs presented evidence that three male employees
of Virginia Tech, who were hired for the same or similar
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fundraising positions as the plaintiffs 1 (male comparators), were
paid higher annual salaries, between $61,000 and $67,000.
The plaintiffs also presented evidence regarding statements
made by Robert Bailey, Senior Regional Director for Major Gifts,
who supervised both Hanes and Hofberg. In April 2007, Maron
expressed an interest in leaving her fundraising position for an
open position with Major Gifts. According to Maron, Bailey
asked her what salary she expected to receive if she were
offered the position. Maron answered $68,500, because that was
the salary earned by the male employee who previously held the
position. Maron testified that Bailey responded, “[The previous
male employee] was the head of his household and had mouths to
feed, and that’s why we paid [him] what we paid him.”
Maron also testified that Bailey told her that hiring
someone like Maron who was “young, newly married” and in “child-
bearing years” would be a “liability,” because the person might
“[be] out [of work] for a significant amount of time.” Maron
ultimately withdrew her candidacy for the position with Major
Gifts. Maron reported this conversation to a human resources
representative and to various supervisors.
1
The parties stipulated before trial that the various
positions held by the plaintiffs and the male comparators
constituted the “same job” for purposes of the EPA.
5
In its defense, Virginia Tech presented evidence regarding
three other male employees who held fundraising positions
similar to those held by the plaintiffs and who were paid less
than the plaintiffs. The evidence showed that these four male
employees received salaries of between $34,000 and $48,000
annually. Evidence also was presented that an additional male
employee holding a similar position earned $49,500 annually.
Supervisors overseeing the fundraising staff at Virginia
Tech testified concerning the hiring process and the manner in
which an employee’s salary is determined. Elizabeth Flanagan,
the Vice President for University Development and University
Relations at Virginia Tech and the final decision-maker for
establishing salaries for all employees working as fundraisers,
stated that individual salary determinations necessarily involve
some subjectivity, because fundraisers are hired to develop
personal relationships with donors.
Flanagan and several other supervisors testified regarding
the gender-neutral factors they consider in making salary
recommendations and decisions. Those factors included fund-
raising experience, sales experience, and advanced degrees.
According to Thimothy Corvin, Associate Vice President for
Development, an applicant’s experience in work involving sales
shows critical skill development that is an indicator of
potential success in fundraising.
6
All three plaintiffs eventually left their positions with
Virginia Tech. Hofberg’s employment with Virginia Tech ended in
August 2006, while Hanes and Maron departed in April 2008 and
October 2008, respectively.
II.
On appeal, the plaintiffs argue that the district court
erred: (1) in setting aside the jury verdict in favor of Maron
on her retaliation claim and entering judgment as a matter of
law in favor of the defendant; (2) in setting aside the jury
verdict in favor of Maron and Hanes on their wage claims and
awarding a new trial on those claims; and (3) in entering
judgment as a matter of law on Hofberg’s wage claim. We address
these arguments in turn.
A.
We begin with Maron’s retaliation claim and her argument
that the district court erred in setting aside the jury verdict
in her favor and in granting Virginia Tech’s post-trial motion
for judgment as a matter of law on that claim. We review the
district court’s decision de novo, viewing the evidence in the
light most favorable to Maron, and drawing all reasonable
inferences in her favor without weighing the evidence or
assessing the witnesses’ credibility. See Anderson v. G.D.C.,
7
Inc., 281 F.3d 452, 457 (4th Cir. 2002). Judgment as a matter
of law is warranted only when the evidence has failed to provide
a legally sufficient basis on which a jury could have rendered
its verdict in favor of the non-moving party. Fed. R. Civ. P.
50.
The relevant portion of Title VII prohibits discrimination
against any employee who “has opposed any . . . unlawful
employment practice.” 42 U.S.C. § 2000e-3(a). To establish a
prima facie case of retaliation, Maron was required to show that
she: (1) engaged in a protected activity; (2) her employer acted
adversely against her; and (3) the protected activity and the
adverse action were causally connected. See Holland v. Wash.
Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). The parties do
not materially dispute that Maron engaged in a protected
activity by filing informal and formal complaints of sex
discrimination. Rather, the central focus of their dispute is
whether Maron presented sufficient evidence from which a jury
could conclude that Virginia Tech acted adversely against Maron,
and that any such action occurred as a result of her protected
activity.
To qualify as an adverse action under the anti-retaliation
provision of Title VII, the employer’s action must be
“materially adverse” to the employee and be capable of
dissuading a reasonable employee from complaining about
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discrimination. Burlington No. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006). A materially adverse action is not limited
to one that affects terms or conditions of employment; however,
“petty slights, minor annoyances, and simple lack of good
manners” do not qualify as adverse actions, because such actions
typically would not deter an employee from complaining. Id. at
64, 68.
In the present case, Virginia Tech asserts that the
district court correctly determined that the trial record did
not contain evidence allowing a jury to conclude that Maron
suffered a materially adverse action. Virginia Tech contends
that, at most, a jury could have found that Maron suffered
“petty slights.” We disagree with Virginia Tech’s arguments.
Viewing the evidence in the light most favorable to Maron,
we hold that the jury could have concluded that Maron was
subjected to actions capable of dissuading a reasonable employee
from complaining about discrimination. We base this conclusion
on three sets of circumstances that occurred after Maron engaged
in the protected activity of filing complaints of sex
discrimination.
The first set of circumstances arose while Maron was
employed to raise funds for the College of Engineering. In
February 2008, Maron received a disciplinary memo from her
supervisor concerning her repeated email communications with
9
Flanagan regarding personal issues. After Maron received this
memo, Flanagan met with Maron regarding the email communications
and other matters. Maron testified that during the meeting with
Flanagan, Flanagan told her that in addition to the email
communications, Maron otherwise had “shown very poor judgment,”
and that she needed to “stop pursuing the things that [she was]
pursuing or [Maron would] ruin [her] career in a very public
way.” According to Maron, Flanagan warned that if Maron wished
to keep her job, she “needed to become invisible” and “stay off
the radar for the next six months at a minimum.” Maron further
maintained that Flanagan stated she would be “watching [Maron]
very, very closely.”
In addition, Maron testified that her supervisor advised
her that he did not “know what [Maron] did, but whatever [she]
did, [she] really pissed [Flanagan and Corvin] off,” and that
they “had it out for [her].” Although the record also contains
evidence that Flanagan was frustrated with Maron’s “poor
judgment” related to her work with donors, we nevertheless
conclude that a jury could have found: (1) that Flanagan’s
statements threatening to terminate Maron’s employment were
based on Maron’s complaints of sex discrimination; and (2) that
such statements constituted a materially adverse action because
they could have dissuaded a reasonable employee from making or
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reporting an incident of discrimination. See White, 548 U.S. at
68.
Maron also presented evidence of two additional
circumstances that the jury could have determined were
materially adverse actions on the part of Virginia Tech. That
evidence related to: (1) Maron’s work performance in fundraising
for the College of Engineering; and (2) actions allegedly taken
by Virginia Tech while Maron was ill and unable to work.
Maron testified that while working to raise funds for the
College of Engineering, she expected to receive a promotion and
a salary increase based on her “benchmark” achievements.
However, Maron stated that her benchmarks were “spontaneously
changed” without cause, and that she failed to achieve “two
pieces of the benchmarks that were unachievable for anyone,” one
of which was required of Maron and not required of other
employees.
With regard to her absence from work due to illness, Maron
presented evidence that she used three months of “sick” leave
permitted under the Family and Medical Leave Act 2 when she
contracted mononucleosis. Maron testified that during this
period of sick leave, her supervisors attempted to replace her.
2
29 U.S.C. §§ 2601 to 2654.
11
We recognize that other evidence in the record conflicted
with Maron’s testimony concerning whether her fundraising
benchmarks improperly were altered, and whether her supervisors
had attempted to replace her while she was ill and unable to
work. However, when construed in the light most favorable to
Maron, her account of these actions, as well as her testimony
regarding Flanagan’s warnings, provided a legally sufficient
basis on which a jury could have concluded that she suffered
materially adverse employment actions that were causally
connected to her earlier reports of sex discrimination.
Therefore, based on all the above evidence, we conclude that the
district court erred in entering judgment as a matter of law in
favor of Virginia Tech on Maron’s retaliation claim.
We next observe that Virginia Tech alternatively moved for
a new trial in the district court on the retaliation claim, an
argument not addressed by the district court. Under Federal
Rule of Civil Procedure 50, when a court grants a renewed motion
for judgment as a matter of law and has before it an alternative
motion for a new trial, the court “must also conditionally rule
on any motion for a new trial by determining whether a new trial
should be granted if the judgment is later vacated or reversed.
The court must state the grounds for conditionally granting or
denying the motion for a new trial.” Fed. R. Civ. P. 50(c)(1).
Because the district court did not make this required
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conditional ruling, we remand the case for consideration whether
a new trial should be granted on Maron’s retaliation claim. See
Havird Oil Co., Inc. v. Marathon Oil Co., Inc., 149 F.3d 283,
288 (4th Cir. 1998) (citing Mays v. Pioneer Lumber Corp., 502
F.2d 106, 109 (4th Cir. 1974), for the proposition that a
district court’s failure to follow Rule 50(c) is error).
B.
Maron and Hanes contend that the district court erred in
setting aside the jury verdict on their wage claims, and in
granting a new trial on those claims. We review a district
court’s decision to grant a new trial for abuse of discretion.
Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 500 (4th Cir.
2001); see Fed. R. Civ. P. 59(a).
In ruling on a motion for a new trial, a court weighs the
evidence and considers the credibility of witnesses. King v.
McMillan, 594 F.3d 301, 314 (4th Cir. 2010). A court will award
a new trial when the verdict was against the clear weight of the
evidence, was based on false evidence, or would result in a
miscarriage of justice. Id. at 314-15. The decision to grant
or deny a motion for a new trial lies within the district
court’s discretion. Id. We will reverse a court’s ruling only
upon “a definite and firm conviction that the [trial] court []
committed a clear error of judgment in the conclusion it reached
13
upon a weighing of the relevant factors.” Westberry v. Gislaved
Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (citation omitted).
To establish a prima facie case of sex discrimination under
the EPA, a plaintiff must prove: (1) that her employer has paid
different wages to employees of opposite sexes; (2) that the
employees hold jobs that require equal skill, effort, and
responsibility; and (3) that such jobs are performed under
similar working conditions. Brinkley v. Harbour Recreation
Club, 180 F.3d 598, 613 (4th Cir. 1999) (citing Corning Glass
Works v. Brennan, 417 U.S. 188, 189 (1974)). After a plaintiff
presents a prima facie case, the burden of persuasion and the
burden of production shift to the defendant. Id.
To avoid liability, the defendant must establish an
affirmative defense by a preponderance of the evidence and
demonstrate that the wage disparity was based on a permissible
factor listed in 29 U.S.C. § 206(d)(1). Brinkley, 180 F.3d at
613. Those factors include an employer’s use of a seniority
system, a merit system, a system based on production, or an
employer’s application of “any other factor other than sex.” 29
U.S.C. § 206(d)(1). In the present case, Virginia Tech asserted
that the wage disparities identified by the plaintiffs were
explained by permissible factors other than sex, namely, the
other employees’ education, previous work experience, and prior
compensation.
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The district court held that Maron and Hanes established
their prima facie case, but determined that the jury verdict was
against the clear weight of the evidence supporting Virginia
Tech’s affirmative defense. The court stated:
Viewing the [] evidence as a whole, it is clear that
Virginia Tech did not compensate on the basis of
gender; Virginia Tech compensated on the basis of
experience. This comports with testimony from Corvin
and Flanagan who stated that the best predictor of
future fundraising success is past sales experience.
The [] evidence could not be clearer: Virginia Tech’s
compensation decisions were driven by legitimate,
gender-neutral concerns. [Maron and Hanes] produced
no credible evidence at trial demonstrating that
“relevant sales experience” was merely a pretext for
discrimination. Because the jury’s finding that
Virginia Tech violated the EPA is against the clear
weight of the evidence, a new trial is proper.
Maron and Hanes challenge this ruling, asserting that the
jury verdict in their favor was not against the clear weight of
the evidence. Maron and Hanes contend that Virginia Tech failed
to produce evidence that the wage disparities “actually” were
based on employees’ experience, and instead showed only that the
wage disparities “could have been” based on employees’
experience. According to Maron and Hanes, Virginia Tech could
not establish its affirmative defense without producing evidence
of the actual compensation recommendations made when the male
comparators were hired. We disagree with these arguments.
Virginia Tech was not required to produce the “best
evidence” to demonstrate that it based compensation decisions on
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gender-neutral factors. Rather, Virginia Tech was required to
prove that it was more likely than not that factors other than
gender were used in establishing the salaries of the plaintiffs
and the male comparators. See Brinkley, 180 F.3d at 613. We
agree with the district court’s decision that the clear weight
of the evidence demonstrated that Virginia Tech proved its
affirmative defense.
Virginia Tech submitted evidence of four male employees who
were performing the same work as the plaintiffs but were paid
less than all three plaintiffs, and of one male employee who was
paid less than two of the plaintiffs. With regard to the male
comparator evidence submitted by the plaintiffs, two of those
higher-paid male employees had numerous years of relevant
experience that the plaintiffs did not have, and the third
higher-paid male employee had earned a higher salary in a
previous position.
Virginia Tech also introduced testimonial evidence from
four supervisors who explained the gender-neutral factors that
they consider when establishing an employee’s salary. This
testimony was corroborated by the actual hiring recommendations
made involving the plaintiffs, which had been created by Corvin
and submitted to Flanagan. Those recommendations referenced
each candidate’s education, experience, and comparable market
salaries.
16
Although Maron and Hanes presented evidence to support
their theory of the case, their evidence was insufficient to
establish “a definite and firm conviction” that the trial court
committed a “clear error” in determining that the clear weight
of the evidence supported Virginia Tech’s affirmative defense. 3
See Westberry, 178 F.3d at 261. Thus, we affirm the district
court’s decision granting Virginia Tech’s motion for a new trial
on the wage claims of Maron and Hanes.
C.
Finally, we address whether the district court erred in
granting Virginia Tech’s motion for judgment as a matter of law
with respect to Hofberg’s wage claim on the basis that her claim
was time-barred. As previously explained, we review de novo a
district court’s decision to grant such a motion. See Anderson,
281 F.3d at 457.
The statute of limitations for a claim alleging a violation
of the EPA is two years. 29 U.S.C. § 255(a). However, for
causes of action arising from an employer’s “willful violation”
3
We find no merit in Maron’s and Hanes’ additional argument
that the district court applied an erroneous legal standard by
stating that the plaintiffs failed to show that the gender-
neutral basis for Virginia Tech’s salary determinations was
“pretext.” The record establishes that the district court
applied the correct legal framework in this case and did not
engage in the burden-shifting analysis appropriate in the
context of other types of discrimination cases.
17
of the EPA, the limitations period is three years. Id. Hofberg
last was employed by Virginia Tech in August 2006, more than two
years before the complaint in this case was filed in November
2008, and more than two years before Hofberg “opted in” as a
plaintiff in December 2008. Therefore, Hofberg’s claim was
untimely unless she proved that Virginia Tech willfully violated
the EPA, triggering application of the extended three-year
limitations period. A willful violation occurs when an employer
knew, or showed reckless disregard for the fact, that its
conduct was prohibited. See McLaughlin v. Richland Shoe Co.,
486 U.S. 128, 133 (1988).
After reviewing the record and considering the parties’
arguments on this issue, we agree with the district court’s
conclusion that there was insufficient evidence from which a
jury could conclude that Virginia Tech willfully violated the
EPA. See Fed. R. Civ. P. 50. The present record shows that to
ensure the equitable treatment of its employees, Virginia Tech
engaged in annual reviews of the employment market for
fundraisers. The supervisors responsible for establishing the
salaries of these employees testified regarding the numerous
gender-neutral factors they considered in making salary
decisions. Based on this evidence, we conclude that the
district court did not err in determining that Hofberg failed to
prove that Virginia Tech willfully violated the EPA. We
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therefore affirm the court’s finding that Hofberg’s wage claim
was time-barred and the court’s entry of judgment as a matter of
law in favor of Virginia Tech.
III.
In sum, we hold that the district court erred in entering
judgment as a matter of law with respect to Maron’s retaliation
claim, because the evidence provided a legally sufficient basis
on which a jury could have concluded that Virginia Tech’s
actions were materially adverse and resulted from Maron’s
protected activity. We therefore reverse that portion of the
district court’s judgment, and remand for a determination
whether a new trial should be granted on that issue.
We further hold that the district court did not err with
respect to any of the plaintiffs’ wage claims. We conclude that
the district court did not abuse its discretion in granting a
new trial on the wage claims of Maron and Hanes, because the
jury verdict was against the clear weight of the evidence. We
also conclude that the district court did not err in entering
judgment as a matter of law on Hofberg’s wage claim, because it
19
was time-barred. Accordingly, we affirm the district court’s
decisions with respect to the plaintiffs’ wage claims. 4
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
4
In light of these holdings, we reject the plaintiffs’
argument that they were entitled to liquidated damages as a
result of Virginia Tech’s failure to comply with the EPA in good
faith.
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