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)

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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

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