Pierce v. Board of Regents of the University System of Georgia

Filing 63

ORDER denying 27 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 08/25/2011. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
LANORA PIERCE,

*

Plaintiff,

*

vs.

*

BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA,

*

CASE NO. 3:09-CV-123 (CDL)
*
Defendant.
*
O R D E R
Plaintiff Lanora Pierce (“Pierce”) is a museum preparator
at the Georgia Museum of Art (“GMOA”), which is the academic
museum for the University of Georgia and Georgia‟s State Museum
of Art.1

Pierce contends that GMOA discriminated against her

because of her sex in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), when GMOA
denied

her

Rivers,

a

denied

the

a

promotion

male,

instead.

promotion

in

to

chief
Pierce

preparator
also

retaliation

and

asserts
for

hired

that

pursuing

Todd

she
a

was

prior

employment discrimination lawsuit against GMOA, in violation of
Title VII and the Equal Pay Act of 1963, 29 U.S.C. § 206(d)
(“EPA”).

1

Presently pending before the Court is GMOA‟s Motion

GMOA is part of the University of Georgia, which is operated by the
Board of Regents of the University System of Georgia. For the sake of
simplicity, the Court refers to GMOA as the Defendant in this case.

for Summary Judgment (ECF No. 27).

For the reasons set forth

below, the motion is denied.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P.

56(a).

Fed. R.

In determining whether a genuine dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party=s favor.
U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc., 477

A fact is material if it is relevant or

necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
Viewed in the light most favorable to Pierce, the record
reveals the following.

Unless otherwise noted, the facts are

undisputed for purposes of GMOA‟s summary judgment motion.
I.

Pierce’s Work History at GMOA
Pierce began working at GMOA as a part-time security guard

in

1996.

Later

that

year,

worker/assistant preparator.

GMOA

hired

Pierce

as

a

utility

Her job duties included installing

works of art, building exhibition furniture and temporary walls,

2

building crates for travel and storage of art, and packing works
of art for travel and storage.

Pierce developed a specialty in

preparing works on paper, including archival mounting, matting,
and

framing.

design.

Pierce

In

2005,

also

assisted

Pierce‟s

curators

position

was

with

exhibition

reclassified

from

“Utility Worker II” to “Museum Preparator,” and she received a
pay increase from “$23,252 to $23,660 in order to meet the FLSA
requirements for exempt positions.”2

Pl.‟s Dep. Ex. 1, Memo from

A. Mondi to L. Pierce, Mar. 15, 2005, ECF No. 28.
II.

Pierce’s Prior Lawsuit
Pierce filed a lawsuit in this Court against GMOA alleging

sex discrimination under Title VII and the EPA.

In that action,

Pierce alleged that she was not selected for a museum preparator
position because of her sex and that she was paid less than a
male employee for equal work.
Bd.

of

Regents,

Compl. ¶¶ 21-31, 38, Pierce v.

3:05-cv-90-CDL,

[hereinafter Pierce I Compl.].

ECF

No.

1

(M.D.

Ga.)

The parties reached a settlement

of that action in April of 2006.
III. The Chief Preparator Position
In

early

exhibitions,

2008,

resigned.

Dennis
In

Harper,

addition

to

Harper oversaw the preparator department.
2

Pierce notes that she received the
internal
grievance
and
then
an
discrimination based on gender. E.g.,
of Undisputed Material Facts 2 ¶ 5, ECF

3

GMOA‟s
his

curator

curator

of

duties,

GMOA‟s director, Dr.

promotion after she filed an
EEOC
charge
claiming
wage
Pl.‟s Resp. to Def.‟s Statement
No. 46-1.

William Eiland, decided that he wanted an art preparator rather
than an exhibition designer to lead the preparator department,
and GMOA posted that it had an opening for the position of chief
preparator.

Eiland Dep. 84:24-86:21, ECF No. 41.

Eiland did

not draft the chief preparator description, but he did specify
that he wanted a preparator and not a designer.

Id. at 84:10-

25, 108:3-8.
A.

Job Description

The

written

job

description

for

the

museum

preparator

position read:
[1]

Plans and carries out preparation, design, and
installation of exhibitions from the museum‟s
permanent collection and traveling exhibitions,
or other display materials.

[2]

Designs
graphics,
exhibitions.

[3]

Designs and constructs shipping crates, display
cases, and object mounts as required.

[4]

Fabricates frames, cuts mats and glazing for twodimensional works of art.

[5]

Packs,
moves
collections.

[6]

Maintains shop and fabrication areas, power tools
and other equipment; inventories and orders
supplies.

[7]

Collaborates with curatorial staff on design of
exhibitions and development of long-range plans
for exhibitions.

[8]

Administers departmental budget and oversees
operations of preparation department, including a

signs,

and

and

assists

4

labels

with

for

storing

small staff of full-time and several temporary
workers and student assistants.
[9]

Pl.‟s

Performs miscellaneous job-related duties as
directed. Other duties as assigned. This is a
full-time position with benefits that reports to
Director.

Dep.

Posting.

Ex.

7

at

BOR-0881,

Chief

Museum

Preparator

Job

The minimum qualifications, experience, and education

were listed as:
[1]

[2]

training and expertise in archival/maintenance
techniques and procedures, including matting of
works on paper and handling of traditional
paintings.

[3]

Must
have
experience
in
art
handling,
preparation, and exhibiting works in many media,
including decorative arts.

[4]

Supervisory
experience
required
with
proven
management
skills
and
knowledge
of
safety
regulations and guidelines and EEO regulations.

[5]

Id.;

Minimum
of
five
years[‟]
experience
in
preparation department in a museum or gallery
with
demonstrable
experience
in
exhibition
design;

Bachelor‟s
degree
required,
graduate
degree
desirable; or equivalent professional experience.
Course work in the arts or a discipline involving
aesthetics.

accord

Eiland

Dep.

87:2-88-2

(stating

that

these

qualifications were the “minimum” qualifications).
The job listing listed the following required skills:
[1]

Ability to supervise the work of others; to
establish and maintain effective, tactful, and
courteous
working
relationships
with
fellow
employees, faculty members, department heads, and
the general public.

5

[2]

Microsoft Word, Photoshop and the ability
learn sign-making and other graphics software.

[3]

General
and
finish
carpentry,
fabrication,
wall
painting
and
preparation.

[4]

Archival matting and framing, or the ability to
learn those skills.

[5]

Knowledge of
practices.

art

[6]

Knowledge of
techniques.

art

[7]

Skills in two- and three- dimensional design.

[8]

Managerial skills, including ability to maintain
a budget.

[9]

Requires sensitivity to detail.

handling

and

installation

to

crating,
exhibition

museum

packing

procedures

and

[10] Must be able to work both independently and
within a team that includes museum curators,
registrars,
designers,
security
personnel,
student interns, and museum specialists.
***
[11] Work involves moderate lifting and handling of
objects up to 50 lbs., with mechanical assistance
on heavier objects.
[12] Work requires stair climbing and the use of
ladders or scaffolding. Standing or walking may
occur up to 40% of the time.
[13] Work environment may involve exposure to paints,
adhesives, and other safety-labeled materials
that
require
following
extensive
safety
precautions.
[14] Work will require the
stationary power tools.

use

of

portable

and

[15] Work will require occasional short- and longdistance travel. Ability to drive a mid-size box
van.
6

Pl.‟s

Dep.

Ex.

7

at

BOR-0881

to

BOR-0882,

Chief

Museum

Preparator Job Posting.
The primary daily activities of the chief preparator were
to be supervising two museum preparators and doing preparator
work.

Manoguerra Dep. 27:1-28:8, ECF No. 40 (stating that chief

preparator would supervise other preparators and do preparator
work at the same time).
preparator

hiring

Eiland, who ultimately made the chief

decision,

“did

not

designer” for the position; he wanted

want

a[n

exhibition]

a person “with proven

preparator skills who will get his or her hands dirty in the
actual installation of . . . exhibitions.”
85:6, 96:7-12.
GMOA‟s

Eiland Dep. 84:24-

Another consideration in the hiring decision was

upcoming

expansion

because

the

chief

preparator

have a role in moving the museum‟s collection.

would

Manoguerra Dep.

69:8-11.
B.

Search Committee

In preparing to fill the chief preparator position, Eiland
consulted

with

Len

opportunity officers.

Davis,

one

of

UGA‟s

equal

employment

Eiland Dep. 80:12-22, 82:5-7.

Eiland

testified that he “probably” consulted with Davis because of
“the

composition

of

it,

and

we

had

just

finished

earlier suit”—Pierce‟s prior action against GMOA.
82:1.

with

the

Id. at 81:16-

Davis recommended that Eiland form a search committee and

place GMOA‟s department heads on it.

7

Id. at 81:9-13.

Eiland

did so, and he believes that he told the committee he wanted to
hire someone with strong technical preparator skills for the
chief preparator job.

Eiland Dep. 96:1-6.

The search committee consisted of three women and two men.
The women were Cece Hinton, Tricia Miller, and Marge Massey; the
men were Paul Manoguerra and Giancarlo Fiorenza.
committee

received

interview

three

Pierce.3
the

forty-seven

applicants:

applications

Carrie

Weis,

and
Todd

The search
decided
Rivers,

to
and

Weis withdrew her application before her interview, and

committee

proceeded

with

the

interviews

of

Pierce

and

Rivers.
C.

Qualifications of the Applicants
1.

Background

It is undisputed that Pierce had worked for twelve years in
the

preparation department at GMOA

chief preparator position.

when she applied for the

Pierce has a Bachelor of Fine Arts

in Painting and Drawing from UGA.

She also has a Master of Fine

Arts in Painting and Drawing from UGA.
Rivers began working for Reynolda House Museum of American
Art in Winston-Salem, North Carolina after he graduated from the
Savannah College of Art and Design in 2001 with a Bachelor of
Fine Arts in Illustration.

Rivers Dep. 9:18-23, 13:22-25, ECF

3

Based on his application, Massey did not select Rivers as one of the
top candidates to interview, though she does not recall why.
Massey
Dep. 50:16-25, ECF No. 42.

8

No. 36.

He became a full-time employee as coordinator of museum

services in January of 2002, and he was promoted to director of
museum services in September of 2003.

Id. at 14:25-16:9.

The

museum services department handled “all of the art handling and
prep” and performed the functions of a preparatory department.
Id. at 20:19-21:3.

As director of museum services, half of

Rivers‟s job responsibility was related to museum events, and
the other half was setting up exhibitions.

Id. at 25:12-19.

It

is undisputed that Reynolda House is an art museum in a historic
house

and

that

the

museum

completed

a

30,000

square

foot

expansion during Rivers‟s tenure there, in either 2004 or 2005.
Rivers does not have a graduate degree.
2.

Technical Qualifications
i.

EXHIBITION DESIGN

Pierce worked “in all aspects of the design of exhibitions,
including
visual

production

of

interpretation

renderings
and

curators, and registrars.”

and

3-D

collaboration

models
with

to

assist

preparators,

Pl.‟s Resp. to Def.‟s Mot. for

Summ. J. Ex. 7, Pl.‟s Resume 1, ECF No. 47-6 [hereinafter Pl.‟s
Resume].
own.

Pierce has designed at least ten exhibitions on her

Pl.‟s Resp. to Def.‟s Mot. for Summ. J. Ex. 83, Pl.‟s

Decl. ¶ 14, ECF No. 49-6. Also, since 2006, Pierce has “been
largely responsible for the MFA student exhibitions.”
Decl. ¶ 22.

Pl.‟s

According to Manoguerra, Pierce was “very good at

9

those exhibitions.”

Manoguerra Dep. 107:11-14.

In addition,

Pierce has learned to use 3-D modeling software to produce floor
plans for exhibitions.

Pl.‟s Decl. ¶¶ 12-13, 15.

At Reynolda House, Rivers was on the exhibitions committee,
which “met to discuss the exhibitions that the museum would have
in

collaboration

director

to

with

decide

the

the

curator

overall

of

American

design

of

art

the

and

the

exhibition,

choosing paint colors, choosing labels, choosing placement of
art within the exhibition.”
point

the

Court

to

Rivers Dep. 22:9-22.

evidence

that

Rivers

GMOA did not

had

experience

independently designing exhibits.
ii.

ART HANDLING,
PRACTICES

INSTALLATION,

AND

PACKING

Pierce “installed over 300 exhibitions” at GMOA.
Resume 1.

Pl.‟s

During fiscal year 2008 alone, GMOA had nineteen

exhibitions, including six different installations of permanent
collection objects.
86,

GMOA

experience

Annual

Pl.‟s Resp. to Def.‟s Mot. for Summ. J. Ex.

Report

57,

ECF

No.

51-1.

Pierce

also

packing and moving large amounts of art.

has

Pierce

“facilitated over 100 traveling exhibitions, including more than
4,000 works of art.
hard

packing,

Resume 1.

This required crate fabrication, soft and

transport

by

car,

van

and

box

truck.”

Pl.‟s

When GMOA moved into a new facility across campus in

1996, Pierce assisted with the move, which involved “thousands”

10

of

works

of

art.

Pl.‟s Decl. ¶

3.

And

when GMOA‟s

fire

suppression sprinkler system had to be replaced in 2008, Pierce
worked to move and protect the artwork, which included packing
and returning “quite a few” loaned works of art to their owners.
Id. ¶¶ 24-27.

This project also included packing a traveling

exhibition that contained 106 framed works on paper.
When
“rotating
consisted

Rivers

began

exhibition
of

“changing

at

Reynolda

space,”
out

so

the

House,

the

Id. ¶ 28.

there

was

not

changes

artwork

to

exhibits

within

the

historic

house;” after the expansion, Reynolda House had “three to seven
exhibitions a year.” Rivers Dep. 25:20-26:7.
Rivers

“did

not

loan

out

too

many

At Reynolda House,

works,

so

[he]

did

actually do a ton of physical crating.” Id. at 32:8-13.

not

Rivers

did gain some experience couriering several pieces of art (one
or two pieces at a time) between lending institutions within
North Carolina and Reynolda House. Id. at 37:23-39:1.
Reynolda

House

expansion,

Rivers

had

to

pack

and

After the
move

some

artwork, but “[p]acking and crating was not necessary because
[the art] didn‟t ever go off site, it just went from one room to
another;” to move art within Reynolda House, Rivers and his
employees wrapped the artwork “in bubble” and transported it on
an art cart.

Id. at 30:6-31:10.

11

iii. ARCHIVAL TECHNIQUES
Pierce matted and framed “well over 2,000 works on paper
for exhibitions.”4

Pl.‟s Resume 1.

Pierce also attended at

least three seminars on “works on paper conservation,” and she
taught a workshop on archival matting, framing, and storage of
works on paper.

Pl.‟s Resume 2.

While at Reynolda House, Rivers had no training in archival
matting

and

framing.

He

“did

not”

do

archival

matting

and

framing at Reynolda House, though he did mat and frame “a couple
of things at home.”
Rivers‟s

framing

Rivers Dep. 28:13-20.
duties

were

At Reynolda House,

“limited

to

assisting

the

collections manager and deciding which mats and which framing
. . . to choose” because the museum “did not have the capacity
for

a

wood

shop

or

a

frame

shop”

outsource a lot of its framing duties.
iv.

and

it

therefore

had

to

Id. at 21:16-22:8.

GENERAL AND FINISH CARPENTRY

Pierce has installed “over 300 exhibitions,” which involved
construction of exhibition furniture, including “object mounts,
cases, pedestals, vitrines, [and] temporary walls and floors.”
Pl.‟s Resume 1.

She built “small to large wall cases; many

exhibition

such

props,

as

wood

or

plexi

boxes/holders/fabric

armatures; and on one occasion a life size camel and donkey for
an exhibition; slant boards for quilts; an upright mat board
4

GMOA contends that Pierce cannot verify this claim, but GMOA pointed
to no evidence to refute it.

12

holder; and shelves/bins to hold works of art.”

Pl.‟s Decl.

¶ 7.
Reynolda House did not have a wood shop until after the
expansion.
workshop,

After the expansion, Reynolda House
and

Rivers

“fabricated

Rivers Dep. 31:11-20.

small

cases

and

had a small
pedestals.”

During his interview, Rivers told the

committee that he had built a deck on his house as an example of
his carpentry skills.
v.

Hinton Dep. 29:17-23, ECF No. 37.

DESIGN AND CONSTRUCTION OF SHIPPING CRATES

As discussed above, Pierce “facilitated over 100 traveling
exhibitions,

including

more

than

4,000

works

of

art.

This

required crate fabrication, soft and hard packing, transport by
car, van and box truck.”

Pl.‟s Resume 1.

Prior to coming to GMOA, Rivers did not have any experience
building crates for moving pieces of art, though he did know “a
theoretical practice of building crates.”

Rivers Dep. 130:19-

131:4.
vi.
Pierce

worked

DESIGN AND CREATION OF EXHIBITION LABELS
with

the

previous

curator

to

create

exhibition labels and “was the only remaining person [at GMOA]
with that skill” after he left.

Pierce Decl. ¶ 30.

trained another preparator to produce exhibition labels.

Pierce
Id.

Rivers‟s training in label making was “on the job.” Rivers
Dep. 27:15-22. According to Pierce, Rivers did not know about

13

requirements

that

the

exhibition

Americans with Disabilities Act.

labels

comply

with

the

Pierce Decl. ¶ 54.

vii. SHOP MAINTENANCE
Pierce “worked extensively in the [GMOA] preparator shop
and used all of the equipment, which includes power tools: table
saw, panel saw, circular saws, router, drills, sanders, painting
equipment and a wall-mounted cutter for cutting glass, Masonite,
plexi glass, and cardboard, as well as obvious items, such as
hammers,

nails

and

hardware

for

building

crates

and

hanging

works of art. The shop contained various kinds of foam used in
crating, etc. that were cut and hot glued, mount making hand
tools and brass/metal supplies. There was also another room with
two mat cutters and a small circle mat cutter.”

Pl.‟s Decl. ¶

6.
Reynolda House did not have a wood shop until after the
expansion.

After the expansion, Reynolda House had a “very

small wood shop.” Rivers Dep. 23:3-7.
3.
At

Supervisory Qualifications

Reynolda

House,

Rivers,

ran

the

museum

services

department, including “budgetary responsibilities, setting and
maintaining the department of budget, supervising staff, doing
performance evaluations, attending department head meetings in
which the movement of art and events were discussed, and then
charged with carrying out those directives.”

14

Rivers Dep. 16:15-

23.

Rivers supervised one full-time employee and one part-time

employee.
contract

Id. at 18:14-25.
construction

Rivers also “indirectly” supervised

labor.

Id.

at

21:4-15.

Rivers

responsible for a budget of approximately $130,000.

was

Id.

at

curator

of

24:12-25:8.
After

Harper

resigned

from

his

position

as

exhibitions, Pierce assumed his job responsibilities over the
preparator department, including supervising the other full-time
preparator and several part-time workers; it was during this
same

timeframe

place.

that

the

sprinkler

Pl.‟s Decl. ¶¶ 23-28.

replacement

project

Pierce also supervised a number

of student workers, interns, and part-time workers.
17.

Pierce

supervision.

received

took

positive

performance

reviews

Id. ¶¶ 16for

her

E.g., Pl.‟s Resp. to Def.‟s Mot. for Summ. J. Ex.

95, L. Pierce 2002 Performance Review, ECF No. 52-8, at BOR-0218
(“Ms.

Pierce

continues

to

supervise

the

work-study

employees

with fairness and efficiency; her dealings with her own intern
over the summer were successful and beneficial to the museum.”);
Pl.‟s Resp. to Def.‟s Mot. for Summ. J. Ex. 97, L. Pierce 2004
Performance Review, ECF No. 52-10, at BOR-0190 (“Ms. Pierce has
shown good supervisory practice, particularly in the areas of
label production and mat room activity.”).

Pierce also assisted

with budgeting for the preparator department, Pl.‟s Decl. ¶¶ 31-

15

38,

though

there

is

evidence

that

budgeting

was

not

one

of

Pierce‟s strengths, e.g., Massey Dep. 68:8-18, ECF No. 42.
Eiland

did

testify

that

Pierce

“didn‟t

evidence

any

ability” to perform supervisory tasks while she was supervising
the preparator department during the first half of 2008.
Dep. 130:10-18.

Eiland

This conclusion was based in part on Eiland‟s

perception that Pierce had developed a “pattern” of “continually
hav[ing] difficulty with other employees.”

Id. at 130:19-25.

According to Eiland, Pierce had difficulty with Greg Benson and
Julie Feldman.
Benson

and

Id. at 131:1-4.

Feldman

in

her

Pierce had complained about

prior

lawsuit.

E.g.,

Pierce

I

Compl. ¶¶ 17-25 (alleging that Benson and Feldman were partly
responsible for Pierce being paid less for equal work than a
similarly

situated

male

and

that

Benson

and

Feldman

had

discouraged Pierce from applying for a promotion).
D.

The Interviews

The search committee interviewed Pierce and Rivers in April
of 2008.
1.
The

Pierce’s Interview

committee

was

underwhelmed

According

to

Manoguerra,

interview

was

“negative

demeanor.

Manoguerra Dep. 86:13-25.

was

formal”

“less

than

the
and

by

“general

Pierce‟s
tone”

of

Pierce‟s

based

on

Pierce‟s

depressing”

Rivers

16

interview.

Massey stated that Pierce

because

she

already

knew

the

committee members.

Massey Dep. 92:11-14.

Massey believed that

the lack of formality in Pierce‟s demeanor and content was “less
professional”

than

Rivers‟s

interview.

Id.

at

170:19-171:2.

Massey also stated that Pierce “sat in a chair at the end of a
table and kind of slouched, laughed about things that maybe out
of nervousness that weren‟t really jokes . . . it was just like
sitting down to have a chat with your friends instead of like a
formal interview, and it was our intention that it be a formal
interview.”

Id.

at

“occasionally

seemed

195:5-10.
a

bit

Miller

defensive”

specifics of the interview.

thought

but

could

that

Pierce

not

recall

Miller Dep. 66:1-10, ECF No. 38.

Hinton, the most positive of the bunch, said that the interview
“went well” but that it was not “great.”

Hinton Dep. 35:15-19.

Hinton thought that it was a difficult dynamic because Pierce
and the members of the search committee already knew each other.
Id. at 35:20-22.
Pierce denies that she “acted unprofessionally, slouched or
was

negative,”

Pl.‟s

Decl.

¶

4,

but

she

believes

that

the

interview was “somewhat awkward,” Pl.‟s Dep. 105:19-21.

Pierce

did

“fresh

not

believe

applicant.”

that

Pl.‟s

the
Dep.

committee

viewed

106:11-12.

her

According

as
to

a

Pierce,

Manoguerra said, “we already know what you do but go ahead and
tell us anyway.”

Id. at 105:22-23.

interview,

answered

Massey

a

At one point during the

question

17

for

Pierce.

Id.

at

105:14-106:19.

Massey admitted that she did not believe that

Pierce should have been interviewed and that she viewed the
interview offer as a courtesy.
2.
The

Massey Dep. 61:1-12.

Rivers’s Interview

committee

had

a

much

more

favorable

impression

of

Rivers‟s interview.

Manoguerra had a “very positive” impression

of

of

Rivers

because

his

enthusiasm

interacted with the committee members.
80:2.

and

the

way

Rivers

Manoguerra Dep. 79:22-

Likewise, “everything” about Rivers‟s interview impressed

Massey,

Massey

specifics

of

Dep.
the

91:2-9,

though

interview.

she

Hinton

did

not

thought

recall

that

many

Rivers‟s

interview was “excellent” because he “seemed very confident and
skilled and talked about moving the contents of the museum where
he was working to the new building.”

Hinton Dep. 24:10-16.

Hinton did note that Rivers stated that his carpentry experience
included building a deck on his house, which Hinton thought
didn‟t “relate well” to the GMOA job.
thought

that

remembered

Rivers

that

“gave

Rivers

“honest and forthright.”
evidence

that

Rivers

a

was

very

Id. at 29:17-25.
good

“personable”

interview,”
and

about

qualifications during the interview.

18

or

and

appeared

Miller Dep. 46:1-11.
lied

Miller

to

she
be

There is no

exaggerated

his

E.
After

Hiring Decision
the

interviews,

the

committee

discussed

the

candidates and unanimously decided to recommend Rivers for the
chief preparator position.5

Manoguerra Dep. 88:6-10; Master Exs.

File Ex. 3, Memo from Chief Museum Preparator search committee
to B. Eiland and A. Mondi, Apr. 17, 2008, ECF No. 43.

In the

memo, the committee stated that Rivers met the requirement of
five years‟ experience in a preparation department at a museum,
that he had demonstrable experience in exhibition design, that
he had a thorough knowledge of art handling, museum packing, and
art installation, and that he had the ability to work well both
independently and within a team.

The memo highlighted Rivers‟s

good interview and his experience relocating the collection of
Reynolda House into the new expansion.

The memo also described

Rivers as a “working manager” who had already managed a museum‟s
staff of preparators and contract laborers and noted that none
of the other applicants had that level of supervisory experience
within an art museum. Master Exs. File Ex. 3, Memo from Chief

5

Hinton initially wanted to recommend Pierce because she “really liked
the idea of hiring from within.”
Hinton Dep. 52:6-15.
Hinton,
however, ultimately deferred to the other members of the committee
because they worked more directly with the preparators. Id. at 55:156:6.
Manoguerra felt that even if it would be preferable to hire
someone from inside GMOA, that consideration “was greatly outweighed
by the negative interview on the part of [Pierce] and the positive
interview on the part of [Rivers], that he was significantly the
better person, and that it was better not to hire from within, promote
from within, because he was so much better [based on his interview
performance and his application].” Manoguerra Dep. 90:5-91:6.

19

Museum Preparator search committee to B. Eiland and A. Mondi,
Apr. 17, 2008, ECF No. 43.
After considering the committee‟s input, reviewing Rivers‟s
resume,

and

asking

Rivers

a

decision to hire Rivers.6

few

questions,

Eiland

made

the

Eiland Dep. 111:7-14, 119:4-120:1,

128:4-8.
F.

Pierce‟s Claims

Pierce‟s
failure

to

claims
promote

in

this

her

action

to

the

are

chief

premised
preparator

on

GMOA‟s

position.

Although Pierce points to evidence of other incidents that she
contends establish discriminatory animus on the part of Eiland
and

GMOA,

Pierce

does

not

contend

“separate and distinct claims.”

that

those

incidents

are

Pl.‟s Resp. to Def.‟s Mot. for

Summ. J. 18 n.27, ECF No. 46.
DISCUSSION
IV.

Pierce’s Discrimination Claim
Title VII prohibits employers from discriminating “against

any

individual

conditions,

or

with

respect

privileges

to

of

his

compensation,

employment,

because

terms,
of

such

individual's race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1).

Where, as here, there is no direct

evidence of discrimination, the Court uses the burden shifting
6

There is a dispute as to whether Eiland met with Rivers when Rivers
came for his interview.
Compare Rivers Dep. 61:17-25 (stating that
Rivers did not meet with Eiland) with Eiland Dep. 111:7-14 (stating
that Eiland met with Rivers on the day of his interview).

20

approach established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) and Texas Department of Community Affairs v.
Burdine, 450 U.S. 248 (1981).
Mgmt.

Grp.

curiam).

Inc.,

509

F.3d

Springer v. Convergys Customer

1344,

1347

(11th

Cir.

2007)

(per

Under the McDonnell Douglas framework, Pierce must

establish a prima facie case of discrimination.

Id.

The burden

then shifts to GMOA to articulate a legitimate nondiscriminatory
reason for the challenged employment action.

Id.

Finally, the

burden returns to Pierce to prove that the articulated reasons
are pretext for discrimination.

Id.

To establish a prima facie case of failure to promote,
Pierce must demonstrate that “(i) she belonged to a protected
class; (ii) she was qualified for and applied for a position;
(iii) despite qualifications, she was rejected; and (iv) the
position was filled with an individual outside the protected
class.”
Pierce

Id. at 1347 n.2.
has

made

out

a

GMOA does not seriously dispute that
prima

facie

case

of

discrimination.

Pierce is a female, was qualified for and applied for the chief
preparator position, was rejected, and the position was filled
with

a

male.

GMOA

articulated

legitimate

nondiscriminatory

reasons for selecting Rivers instead of Pierce: (1) Rivers had
more supervisory experience, and (2) Rivers interviewed better
than

Pierce.

The

remaining

question

21

is

whether

Pierce

has

pointed to sufficient evidence to create a genuine fact dispute
on pretext.
In a failure to promote case, a “„plaintiff cannot prove
pretext by simply arguing or even by showing that he was better
qualified than the [employee] who received the position [s]he
coveted.

A plaintiff must show not merely that the defendant‟s

employment decisions were mistaken but that they were in fact
motivated by [gender].”

Harrell v. Ala. Dep’t of Educ., 342 F.

App‟x 434, 436 (11th Cir. 2009) (per curiam) (first and second
alterations in original) (quoting Alexander v. Fulton Cnty., 207
F.3d 1303, 1339 (11th Cir. 2000)).
reason

for

preparator

selecting
position,

Rivers
Pierce

To rebut GMOA‟s proffered

instead
“must

of

show

her
that

for
the

the

chief

disparities

between the successful applicant‟s and her own qualifications
were „of such weight and significance that no reasonable person,
in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff[.]‟”

Id. (quoting Cooper

v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004), overruled
on other grounds in Ash v. Tyson Foods, Inc., 546 U.S. 454, 45657 (2006)).
The Court is satisfied that there is a genuine fact dispute
as

to

whether

the

disparities

between

the

technical

qualifications of Pierce and Rivers were of such a weight and
significance that no reasonable person could have chosen Rivers

22

over Pierce based on the technical qualifications.

Viewed in

the light most favorable to Pierce, the record shows that Pierce
had substantially more experience than Rivers in every technical
element of the chief preparator job description, and Rivers had
virtually

no

experience

in

some

of

the

minimum

technical

requirements of the job.
1.

Preparator
Experience.
Pierce
had
twelve
years
of
experience in a museum preparation department.
She also
had an MFA.
At most, Rivers had six and a half years of
experience, and only half of his responsibilities in the
museum
services
department
related
to
setting
up
exhibitions. Rivers had a BFA but no graduate degree.

2.

Exhibition
Design.
Pierce
had
significant
experience
designing exhibitions on her own. Rivers did not.

3.

Installation, Packing, and Moving Art. Pierce installed
more than 300 exhibitions at GMOA and worked in an
environment that involved significant movement of artwork
within the museum and as traveling exhibitions.
She
assisted with one significant cross-campus move that
involved thousands of works of art, and she packed and
either stored or returned to lenders many works of art as
part of the sprinkler replacement project.
Rivers‟s
experience was limited in comparison; even after the
expansion, Reynolda House had three to seven exhibitions a
year and did not loan out many works.
And when it was
necessary to move art at Reynolda House, it was just from
one room to another, so packing and crating was not
necessary.

4.

Archival Techniques.
Pierce had significant experience
matting and framing artwork, and she both attended and
taught seminars on archival matting, framing, and storage.
Rivers had no formal training in archival matting and
framing and did not do any archival matting and framing at
Reynolda House because those duties were outsourced, though
he did mat and frame a couple of things at home.

5.

General and Finish Carpentry.
Pierce had extensive
construction experience and had built everything from
temporary walls and pedestals to display cases and
23

exhibition props.
In contrast, Rivers fabricated small
cases
and
pedestals.
To
illustrate
his
carpentry
experience during his interview, Rivers mentioned that he
had built a deck on his house.
6.

Design and Construction of Shipping Crates.
Pierce had
significant experience fabricating crates and transporting
art.
Rivers only had a theoretical knowledge of crate
building.

7.

Design and Creation of Exhibition Labels. Pierce was one of
two people who created exhibition labels at GMOA, and she
trained another preparator to create labels. Rivers had on
the job training for label design and creation but was
unaware of ADA requirements for exhibition labels.

8.

Shop Experience.
Pierce worked extensively in GMOA‟s
preparator shop and was experienced with all of the
equipment.
Rivers did not have access to a wood shop at
Reynolda House until after the expansion, and even then the
shop was very small.
In summary, a jury could conclude, based on Rivers‟s own

testimony,

that

Rivers‟s

experience

in

a

museum

preparatory

department consisted chiefly of hanging on a wall art that had
already been prepared and framed.
reasonable

juror

could

conclude

Based on this evidence, a
that

there

are

significant

disparities between the technical qualifications of Pierce and
Rivers.
in

the

In addition, based on a comparison of the skills listed
chief

preparator

job

description

and

Rivers‟s

actual

skills, a reasonable juror could conclude that Rivers had no
training or experience that would qualify him to perform several
technical duties that were minimum requirements of the chief
preparator job.
chief

preparator

For example, a minimum qualification of the
job

was

“training

24

and

expertise

in

archival/maintenance
matting

of

techniques

works

paintings.”

on

Pl.‟s

paper

Dep.

Preparator Job Posting.
met

this

minimum

present

record

matting

and

and
and

Ex.

7

handling
at

of

BOR-0881,

including
traditional

Chief

Museum

GMOA pointed to no evidence that Rivers

requirement.

suggests

framing

procedures,

at

Rather,

that

Rivers

Reynolda

the

“did

House

evidence
not”

and

do

that

in

his

the

archival
framing

duties prior to GMOA were “limited to assisting the collections
manager

in

deciding

which

mats

and

which

choose.” Rivers Dep. 21:16-22:8, 28:13-20.
does

not

possess

the

stated

minimum

framing

. . .

to

Hiring someone who

qualifications

for

a

position could authorize a jury to find that the employer‟s
articulated reasons for its decision were pretextual.
v.

Bd.

of

Cnty.

Comm’rs,

256

F.3d

1095,

1107-08

See Bass

(11th

Cir.

2001), abrogated on other grounds as recognized in Crawford v.
Carroll,

529

F.3d

county‟s

hiring

961,

of

an

971

(11th

employee

Cir.

who

was

2008)

(finding

unqualified

that

for

a

position instead of the plaintiff, who was qualified, supported
an inference of discrimination).

The Court does not find today

that Rivers failed to meet the minimum qualifications for the
chief preparator job.

Rather, the Court finds that that Pierce

has pointed to evidence that, with all reasonable inferences
construed in her favor, would allow a reasonable jury to make
that conclusion.

25

GMOA contends that even if Pierce had superior technical
expertise,

GMOA

selected

Rivers

over

stronger supervisory experience.

Pierce

because

he

had

The evidence viewed in the

light most favorable to Pierce, however, shows that the chief
preparator position was a hands on position and that the chief
preparator would be required to do preparator work alongside the
two

museum

preparators

while

also

supervising

them.

As

discussed above, a reasonable juror could conclude that Rivers
had virtually no experience in
elements

of

techniques

the

and

chief

crate

several

preparator

construction,

of the

and

he

technical

including

job,

key

archival

had

only

limited

experience in others, such as carpentry and exhibition design.
A reasonable juror could conclude, based on the evidence in the
present record, that these skills were minimum requirements of
the chief preparator job and that Rivers did not possess all of
them.

A reasonable juror could also conclude that Rivers‟s lack

of experience would render Rivers unprepared to supervise and
work

in

these

areas,

regardless

of

his

general

supervisory

experience.
GMOA also contends that the decision to hire Rivers was
based on Rivers‟s superior interview.

As discussed above, there

is a genuine fact dispute as to whether Rivers met the minimum
qualifications

in

certain

technical

aspects

of

the

chief

preparator position, and GMOA pointed to no evidence that an

26

interview—even an outstanding one—could make up for a lack of
technical qualifications for the chief preparator job.

Based on

the evidence before the Court, the chief preparator job

had

serious technical requirements, and under such circumstances a
reasonable fact finder could conclude that it is implausible to
suggest that an interview would trump an applicant‟s failure to
meet the minimum stated requirements for the position.
For the reasons set forth above, the Court concludes that
Pierce has pointed to sufficient evidence to create a genuine
issue of material fact on the question whether GMOA‟s proffered
reasons for hiring Rivers instead of Pierce are pretext for
discrimination.

Accordingly, GMOA‟s motion for summary judgment

as to Pierce‟s discrimination claim is denied.
V.

Pierce’s Retaliation Claim
To establish a prima facie case of retaliation, Pierce must

show that (1) she engaged in statutorily protected activity, (2)
she suffered a materially adverse employment action, and (3)
there was a causal link between the two.

Dixon v. The Hallmark

Cos., 627 F.3d 849, 856 (11th Cir. 2010); accord Wolf v. CocaCola Co., 200 F.3d 1337, 1342-43 (11th Cir. 2000) (outlining
prima facie case of retaliation under the Fair Labor Standards
Act, which was amended to include the EPA).

GMOA does not

dispute that Pierce engaged in statutorily protected activity
when she filed the prior lawsuit in 2005.

27

GMOA also does not

dispute

that

Pierce

suffered

a

materially

adverse

action when she was not promoted in April 2008.

employment

GMOA contends

that there is no causal relation between the two events because
of the two-year gap between the settlement of the prior lawsuit
and the denied promotion.
GMOA

correctly

established

“by

statutorily

asserts

showing

protected

that

while

close

temporal

activity

and

causation

the

be

between

proximity

can

the

adverse

employment

action,” “mere temporal proximity, without more, must be very
close.”

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364

(11th Cir. 2007) (internal quotation marks omitted).

The Court

agrees that if Pierce had only pointed to evidence of temporal
proximity as evidence of causation, then GMOA would be entitled
to summary judgment because the 2005 lawsuit/2006 settlement was
not “very close” to the 2008 denied promotion.
that

three-month

requirement).
Eiland

delay

was

too

long

to

See id. (finding

meet

“very

close”

Here, however, Pierce pointed to evidence that

specifically

contemplated

Pierce‟s

prior

lawsuit

just

before he made the hiring decision, and a reasonable juror could
conclude that in Eiland‟s mind, GMOA had “just finished with”
Pierce‟s prior action against GMOA.
addition,

Eiland

qualified

for

the

noted
chief

that

he

Eiland Dep. 81:16-82:1.

thought

preparator

that

position

In

Pierce

was

not

because

she

had

“difficulties” with the two employees whose conduct was an issue

28

in Pierce‟s prior lawsuit.

Id. at 130:19-131:4.

From this, a

reasonable juror could conclude that Eiland declined to promote
Pierce not because he thought she would make a bad supervisor
but because he viewed her as a troublemaker who complained too
much about the violation of her rights under the employment laws
of the United States.

Accordingly, the Court finds that Pierce

has established a prima facie case of retaliation.
GMOA‟s proffered legitimate non-retaliatory reason for its
decision to hire Rivers is the same as its proffered legitimate
nondiscriminatory reason.

As discussed above, Pierce pointed to

sufficient evidence to create a genuine fact dispute on the
question

whether

GMOA‟s

proffered

reasons

instead of Pierce are pretextual.

for

hiring

Rivers

For all of these reasons,

GMOA‟s summary judgment motion as to Pierce‟s retaliation claim
is denied.
CONCLUSION
For the reasons set forth above, GMOA‟s Motion for Summary
Judgment (ECF No. 27) is denied.

IT IS SO ORDERED, this 25th day of August, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

29