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
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