Stephens v. Board of Trustees Of The University Of South Florida

Filing 71

ORDER granting 43 --motion for summary judgment; directing the clerk to ENTER JUDGMENT for the Board of Trustees of the University of South Florida and against Heidi M. Stephens on each count, to TERMINATE any pending motion, and to CLOSE the case. Signed by Judge Steven D. Merryday on 10/4/2018. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HEIDI M. STEPHENS, M.D.,
Plaintiff,
v.

CASE NO. 8:17-cv-53-T-23AAS

BOARD OF TRUSTEES OF THE
UNIVERSITY OF SOUTH FLORIDA,
Defendant.
____________________________________/

ORDER
Heidi M. Stephens, M.D., sues (Doc. 30) the Board of Trustees of
the University of South Florida under Title VII and the Equal Pay Act. In
response to the defendant’s motion (Doc. 43) for summary judgment, Stephens
correctly concedes (Doc. 47) that her Title VII claim is time-barred. Under
42 U.S.C. § 2000e-5(e)(1), a plaintiff in a deferral state such as Florida must file a
charge of discrimination with the Equal Employment Opportunity Commission
no more than three hundred days after the employer notifies the employee of the
adverse employment decision. Del. State Coll. v. Ricks, 449 U.S. 250, 258–59, 101
S.Ct. 498, 505, 66 L.Ed.2d 431 (1980); E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d
1265, 1271 (11th Cir. 2002). Stephens’ limitation began on September 9, 2015,
when Stephens’ supervisor, Roy Sanders, M.D., informed Stephens by letter of a
new pay model that she alleges was discriminatory. Stephens submitted an EEOC

charge 310 days later on July 15, 2016. USF is entitled to summary judgment on
Stephens’ unmistakably time-barred Title VII claim.
Stephens’ Equal Pay Act claim remains, and USF moves (Doc. 43) for
summary judgment. Because USF did not subject Stephens to different pay for
equal work, and alternatively because USF shows without genuine factual dispute
that attempted budget balancing — which qualifies for the Equal Pay Act’s “factor
other than sex” exception — explains any pay differential, the motion is granted.
BACKGROUND
Stephens works at USF’s Morsani College of Medicine as an orthopaedic
surgeon. She is a member of Morsani’s clinical faculty, and she began her
employment in 1993 in the Department of Orthopaedics and Sports Medicine.
Stephens briefly practiced in the Department of Surgery but returned to the
Orthopaedics Department in 2011.
In 2014, USF began recruiting new leadership to reverse Morsani’s
significant budget deficits, particularly in faculty compensation. (Doc. 44-12 at 4)
As part of that turnover, USF hired Sanders in March 2015 to lead the Orthopaedics
Department. With support from Morsani leadership, Sanders revised the
Orthopaedics Department’s compensation in order to mitigate financial losses.
(Doc. 44-9 at 19–20)
USF compensates clinical faculty through a three-component salary. The
University Contracted Salary (UCS), which is fixed and non-discretionary, typically

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constitutes most of a faculty member’s salary. Also, faculty members can receive
supplementary compensation from the Academic Support Fund (ASF). Unlike
UCS, ASF is a “non-guaranteed, variable component” of clinical faculty salary.
(Doc. 44-16 at 2, 44-3 at 37–38) Each department chair retains discretion to disburse
ASF compensation “subject to the individual faculty member’s achievement of
performance criteria and goals.” (Doc. 44-16 at 2, 44-3 at 37–38) Further, a faculty
member with administrative responsibilities can receive compensation through an
administrative stipend. For instance, Stephens annually earned $30,000 for serving
on USF’s Medical Directors Committee until USF discontinued both her role and
her stipend in March 2015. Also, chairing the Billing Integrity Advisory Committee
until October 2017, Stephens received an annual administrative stipend until August
2015, when USF replaced the annual disbursement with a maximum of $15,000 in
hourly compensation each year.
To balance faculty compensation in the Orthopaedics Department, Sanders
in 2015 implemented the “Eat What You Kill” formula. Before September 2015,
an Orthopaedics Department clinical faculty member received ASF compensation
regardless of each member’s revenue generation. “Eat What You Kill” conditioned
ASF disbursement on each member’s generating enough revenue to cover the
member’s overhead. In other words, exercising his discretion in ASF compensation,
Sanders offered an incentive to each member of the Orthopaedics Department faculty
to practice self-sufficiently.

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Before the formula, Stephens received $8,866.42 each month in ASF
compensation. In the first month, “Eat What You Kill” obligated Stephens to
generate $51,929.00 in order to maintain her $8,866.42 ASF payment. In the same
time and under the same formula, Stephens’ four male Orthopaedics Department
colleagues respectively needed to collect $62,148.00 to earn $24,553.00 in ASF pay;
$53,220.00 to earn $35,544.99; $56,000.00 to earn $22,500.00; and $50,027.00 to earn
$20,000.00. Some of Stephens’ male colleagues occasionally failed to reach the
collection targets. In contrast, Stephens, a historically poor revenue generator, failed
to generate enough revenue to cover her overhead expenses in every month but one.
DISCUSSION
A plaintiff establishes a prima facie Equal Pay Act violation by showing that
the employer “pays different wages to employees of opposite sexes ‘for equal work on
jobs . . . [requiring] equal skill, effort, and responsibility, and which are performed
under similar working conditions.’” Corning Glass Works v. Brennan, 417 U.S. 188,
195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974) (quoting 29 U.S.C. § 206(d)(1)).
However, the Equal Pay Act permits a difference in pay that results (1) from a
seniority system, (2) from a merit system, (3) from a system of which measures
earnings by quantity or quality of production, or (4) from a differential based on
any factor other than sex. Corning Glass Works, 417 U.S. at 196–97, 94 S.Ct. at 2229.
If the employer establishes an exception by a preponderance of the evidence, the
plaintiff must show by affirmative evidence that the proffered exception is either

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pretext or a post-event justification. Schwartz v. Fla. Bd. of Regents, 475 F.2d 1041,
1045 (11th Cir. 1991) (per curiam).
Stephens’ complaint states that “[o]n or about September 19, 2015, [USF],
through its agent, [Sanders], removed from [Stephens] all of her teaching, research,
and administrative duties and reduced [her] compensation from $386,000.00 to
$83,000.00 a year.” (Doc. 30 at ¶ 4) Listing the four male Orthopaedics Department
clinical faculty members as comparators, the complaint adds, “[USF] compensates
[Stephens] . . . at a rate lower than which it compensates [her] male colleagues. Such
action violates [Stephens’] rights under the [Equal Pay Act].” (Doc. 30 at ¶¶ 12–13)
Stephens’ threadbare allegations do not plainly identify the means by which
USF differently paid Stephens for the same work as her male colleagues. She might
assert any one of at least three theories. Perhaps Stephens contends that USF
violated the Equal Pay Act by paying her less than half of her male colleagues’ ASF
compensation. (Doc. 47 at 3) If she raises that argument, USF correctly replies that
Stephens impermissibly raises a new claim because Stephens’ basis — the ASF pay
differential — both predates September 20151 and falls considerably short of the

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A 2008 settlement agreement between Stephens and USF fixed Stephens’ monthly ASF
at $13,500.00. But the record provides no indication of who decreased Stephens’ ASF pay to
$8,866.42, no indication of when her ASF pay decreased, and no indication of why her ASF pay
decreased. There lies the problem with asserting a new claim in a motion for summary judgment.
The purpose of the rule requiring “a short and plain statement of the claim showing that the pleader
is entitled to relief” is to notify the defendant of the claim and of the grounds on which the claim
rests. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2 80 (1957). A well-pleaded
complaint activates generous discovery rules that permit definition of the disputed facts and issues.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002). In this
instance, the parties dedicated most of their attention in discovery to the time-barred Title VII claim
and to the events of September 2015.

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alleged $303,000 difference. See Flintlock Const. Servs., LLC v. Well-Come Holdings,
710 F.3d 1221, 1226–27 (11th Cir. 2013) (holding that introducing in a summary
judgment motion a new theory for relief impermissibly amends a claim).
Alternatively, Stephens might argue that “Eat What You Kill” paid her
differently by setting her collection target higher than her male colleagues’ collection
targets. (Doc. 47-4) Not only is Stephens’ premise generally untrue,2 her argument
misconstrues the purpose of “Eat What You Kill,” which did not fix any clinical
faculty member’s income but determined whether a clinical faculty member would
receive ASF compensation at all. Surpassing a collection target had no bearing on
the amount or rate of a clinical faculty member’s compensation. (Doc. 44-9 at 23)
Also, Stephens might argue that USF paid her unequally by removing her
administrative stipends. (Doc. 47 at 2) For the same reasons as the ASF difference
theory, the argument appears barred as a new claim.3 Additionally, the theory
necessarily concedes that Stephens work did not equal the work of her male
colleagues. The issue of “equal work” examines “job content — the actual duties the
respective employees are called upon to perform.” Waters v. Turner, Wood & Smith Ins.
Agency, Inc., 874 F.2d 797, 799 (11th Cir. 1989) (per curiam) (quoting Pearce v. Wichita

2

“Eat What You Kill” set Stephens’ collection target lower than all but one of her male
colleagues’ collection targets. (Doc. 44-16 at 51–55)
3

USF relieved Stephens of her Medical Directors Committee duties on March 24, 2015, and
notified her on August 18, 2015, of its plan to compensate hourly her Billing Integrity Advisory
Committee responsibilities. (Doc. 44-3 at 42–43) In 2015, Stephens’ stipends for serving on the
Medical Directors Committee and the Billing Integrity Advisory Committee totaled $93,833.76.
(Doc. 44-16 at 10)

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Cty., City of Wichita Falls, Tex., Hospital Bd., 590 F.2d 128, 133 (5th Cir. 1979)). The
work need not be identical, only substantially equal. Miranda v. B & B Cash Grocery
Store, Inc., 975 F.2d 1518, 1533 (11th Cir. 1992). But Stephens’ argument about the
termination of her administrative stipends — compensation for non-clinical work —
renders invalid a comparison between Stephens and her male colleagues. Stephens
spent half her time on non-clinical work; her male colleagues spent all their time on
clinical work.
USF has established that no genuine issue of material fact exists and that
Stephens fails to sufficiently show that USF paid her differently for equal work.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 202
(1986).
The undisputed facts show both that USF, faced with financial deficits
and closure of the Orthopaedics Department, instituted financial reform and —
because of “Eat What You Kill” — the reform resulted in Stephens’ loss of
both administrative stipends and ASF salary. The record provides continuous,
corroborated, and undisputed support for USF’s budgetary explanation, and
Stephens presents no evidence suggesting that USF’s reforms were pretextual,
were developed as a justification after the fact, or otherwise were aimed at her in
particularly or at women in general.

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CONCLUSION
USF’s motion (Doc. 43) for summary judgment is GRANTED. The clerk is
directed (1) to enter judgment for the Board of Trustees of the University of South
Florida and against Heidi M. Stephens on each count, (2) to terminate any pending
motion, and (3) to close the case.
ORDERED in Tampa, Florida, on October 4, 2018.

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