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


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  •                              UNPUBLISHED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    Affirmed in part, reversed in part, and remanded by unpublished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    Unpublished opinions are not binding precedent in this circuit.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
    4
    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
    8
    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
    10
    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
    12
    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.
    14
    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
    15
    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
    18
    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.
    20