Gibbs v. Dorchester County Board of Education

Filing 24

MEMORANDUM OPINION. Signed by Magistrate Judge J. Mark Coulson on 1/6/2017. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARY WOOLFORD GIBBS,
Plaintiff

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*

v.

*

BOARD OF EDUCATION OF
DORCHESTER COUNTY,

*

Defendant.

Civil Case No. 16-00395-JMC

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*******
MEMORANDUM OPINION

Plaintiff, Mary Gibbs, brought this action against Defendant, Board of Education of
Dorchester County (the “Board”), alleging illegal employment practices by the Board in
violation of Mrs. Gibbs’s rights under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §2000e (“Title VII”) (Count I) and 42 U.S.C. § 1981 (“Section 1981”) (“Count II”).
Specifically, Plaintiff, an African-American woman, contends that she was undercompensated as
a result of her race, and as relief for that alleged violation, she seeks a declaratory judgment,
$100,000 in compensatory damages, and reasonable attorneys’ fees and costs. (ECF No. 1-9.)
The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c) and
Local Rule 301.4. (ECF Nos. 13, 14.) Now pending before the Court is Defendant’s Motion for
Summary Judgment. (ECF No. 17). The Court has also considered Plaintiffs’ Response in
Opposition and Defendant’s Reply. (ECF Nos. 18-1, 19). A hearing was held on December 16,
2016. (ECF No. 23.) For the reasons that follow, Defendant’s Motion for Summary Judgment is
GRANTED.

I.

Background
In April 2012, the Board advertised for an “Accounts Payable Specialist or Accounts

Payable Clerk, 12-Month Central Office Position.” That advertisement noted the following
details regarding the position’s salary:
Commensurate with qualifications, experience, and determination
of salary scale placement. Based on the current salary scale for either:
Accounts Payable Specialists – Administrative Secretary/Financial Specialist 12
month. Range is currently $30,183 – $50,095. Or Accounts Payable Clerk
– Office Clerk/Secretary $19,532 - $32,417.
ABT AFFIDAVIT, at ¶ 5 (ECF No. 17-5). The advertisement also listed a number of
“qualifications” for the position, including, among other things:
•

Graduation from a standard high school or possession of a State high
school equivalence certificate- A.A. degree desirable in the fields of either
finance, accounting, business or related fields.

•

Two years of experience in finance, accounting, procurement;
***

•

Finance, accounting and/or bookkeeping experience to include a basic
understanding of bank account reconciliation, budgeting and expense
coding;

•

Proficient technology skills to include Microsoft Word, Excel, Outlook;

•

Experience with accounts receivable, and or accounts payable;

•

Some experience w/ automated finance systems/or other databases

(ECF No. 17-5-B).
Plaintiff applied for that position later that same month. In her application, Plaintiff stated
that she “had a high school diploma and was enrolled at a local community college working
toward an associate degree in accounting.” ABT AFFIDAVIT, at ¶ 6. She also indicated that “she
had been working for the past twelve to thirteen years as ‘Lead Supervisor – Head Teller’ for
2

The Bank of Eastern Shore, [and] in that capacity she had been responsible for teller training,
reconcilement of general ledger accounts, data entry, and general supervision of tellers.” Id.
Plaintiff did not, however, “indicate any professional experience in finance, accounting, or
procurement, nor did she indicate any professional experience in accounts payable and/or
receivables.” Id.
Although Plaintiff did not meet all of the qualifications listed in the application, the
Board, by way of letter correspondence, offered Plaintiff the position of Accounts Payable Clerk,
assigned to the Finance Department in Central Office. ABT AFFIDAVIT, ¶ 7. Her starting salary
was $25,717, based on “ Step 9 of the 2011-12 Office Clerk- Secretary – 12 month Salary
Scale for Dorchester County Public Schools.” 1 ABT AFFIDAVIT, ¶ 10. Plaintiff acknowledged
receipt of this letter correspondence and accepted the position, salary, and benefits described
therein. She began in her new position with the Board on June 4, 2012. ABT AFFIDAVIT, ¶ 7, 10.
According to Mr. Charles Dwayne Abt, the Board’s Human Resources Administrator at
the time, Plaintiff’s salary was calculated pursuant to the Department of Human Resources
Salary Offer Guidelines (the “Guidelines”). ABT AFFIDAVIT, ¶ 8-9; ABT DEPOSITION at 24 (ECF
No. 18-6). In accordance with those Guidelines, the Board determines the salary of newly hired
non-certified employees on a case-by case basis, taking into account the following factors
relating to the employee:
(a) their Total Experience, which is generally defined as the total number of
years of experience in the workforce; (b) their Relevant Related Experience,
which is generally defined as the amount of experience a new hire has in the
relevant field of work; (c) their Training, whereas a new hire with training,
credentialing, education, or licensure which exceeds the minimum requirements
of the position and which are an asset to DCPS will be placed on a higher
salary scale, subject to salary parameters identified in the Vacancy
Announcement; (d) Comparability/Equity, whereby a new hire’s starting salary
1

The terms of employment and compensation for Board employees, including Plaintiff, are governed by the
Negotiated Agreement between the Board and the requisite employee bargaining unit. ABT AFFIDAVIT, ¶ 19.

3

is compared with the salaries of existing employees in the relevant
department; and (5) Budget, whereby consideration is given to the budget for the
position and for the relevant department.
ABT AFFIDAVIT, ¶ 8-9.
Based on applying these factors, Plaintiff’s starting salary was determined to be the
approximate mid-point of the advertised range for the clerk position. ABT AFFIDAVIT, ¶ 8-9. In
the eight months after beginning her position with the Board, Plaintiff received three salary
increases, bumping her salary by approximately twenty percent. In July 2012, one month after
being hired and the start of the new fiscal year, Plaintiff moved from Step 9 to Step 13 of the 12
Month Office Clerk/Secretary salary scale, and as a result, her annual salary increased to
$26,617. ABT AFFIDAVIT, ¶ 11. Then, in January 2013, Plaintiff’s position was reclassified from
clerk to specialist, which moved her from Step 13 of the 12-Month Office Clerk/Secretary to Step
1 of the 12-Month Administrative Secretary/Financial Specialist pay scale of the Negotiated
Agreement. That move increased her salary to $30,733. ABT AFFIDAVIT, ¶ 12; BROOKE
AFFIDAVIT, ¶ 6-7 (ECF No. 17-4). And in February 2013, the Board, in response to Plaintiff’s
request for a salary increase, informed Plaintiff that she qualified for a two-step salary increase,
raising her salary to $30,933. ABT AFFIDAVIT, ¶ 14.
In May 2013, the Board again advertised for a new position, this time for a “Payroll
Specialist” position, the salary for which was based on the 12-Month 2012-2013 Administrative
Secretary Salary Scale ($30,733 - $51,345). ABT AFFIDAVIT, ¶ 15. Plaintiff, at that point an
“Accounts Payable Specialist,” applied for the position, even though, at the time of her application,
she did not have any payroll experience. Nonetheless, the Board, by way of letter correspondence,
notified Plaintiff that she received the job but that there would be no change in her then-current
salary of $30,933 ABT AFFIDAVIT, ¶ 16. Plaintiff acknowledged the salary and benefits, and accepted
the position. Id. She began in that role on July 1, 2013. Id.

4

In February 2014, after beginning her new position, Plaintiff met with Mr. Abt in order to
discuss a request she had made for a pay raise. ABT AFFIDAVIT, ¶ 19. According to Mr. Abt’s
affidavit, he explained that her move from Accountants Payable Specialist to Payroll Specialist was a
lateral move, that the terms of her employment, including her compensation, were governed by the
Negotiated Agreement, and that she was not entitled to raise. Id.
In July 2014, the start of the new fiscal year, Plaintiff, along with all other non-certificated
employees, received a two-step salary increase—her fourth salary increase in two years—bringing
her annual salary to $32,341, more than 25 percent higher than where she had started. ABT
AFFIDAVIT, ¶ 20. Plaintiff resigned from employment with the Board in October of 2014. ABT
AFFIDAVIT, ¶ 21. At the time of her resignation, Plaintiff’s salary was $32,341. ABT AFFIDAVIT, ¶
20. Neither her “Exit Interview Survey” nor her “Notice of Separation” contained any allegations or
claims that Plaintiff was undercompensated because of her race. ABT AFFIDAVIT, ¶ 21-22.
In April 2015, Plaintiff filed a formal charge of employment discrimination with the United
States Equal Employment Opportunity Commission (“EEOC”), alleging that Defendant had engaged
in unlawful employment discrimination against her on the basis of race by compensating her at a
lower rate than her white colleagues. (ECF Nos. 17-2, Exh. 1.) The EEOC issued a Dismissal and
Notice of Rights, and thereafter dismissed the charge and informed Plaintiff of her right to file a
lawsuit. (ECF Nos. 17-3, Exh. 2.) Plaintiff then brought the instant action in February 2016. (ECF
No. 1.) Since that filing, the parties have completed discovery (ECF Nos. 1, 16), and based on the
foregoing, the Defendant has filed a Motion for Summary Judgment that Plaintiff has opposed. (ECF
Nos. 17, 18, 19.)

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II.

Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, “the Court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). “In considering a motion for
summary judgment, the judge's function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial.” Gbenoba v.
Montgomery Cty. Dep't of Health & Human Servs., 209 F. Supp. 2d 572, 575 (D. Md. 2002)
(internal citations and quotations omitted). “A dispute about a material fact is genuine if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
“Thus, the judge must ask himself not whether he thinks the evidence unmistakably favors one
side or the other but whether a fair-minded jury could return a verdict for the nonmoving party
on the evidence presented.” Id. (brackets omitted). “In undertaking this inquiry, a court must
view the facts and the reasonable inferences drawn therefrom in the light most favorable to the
party opposing the motion but the opponent must bring forth evidence upon which a reasonable
fact finder could rely.” Id. “The mere existence of a scintilla of evidence in support of the
nonmoving party's case is not sufficient to preclude an order granting summary judgment.” Id.
(emphasis in the original).

III.

Discussion
In her complaint, Plaintiff alleges that the Board undercompensated her on account of her

race, in violation of Title VII and Section 1981. (ECF No. 1.) As support for this claim, Plaintiff
identifies six white colleagues with higher salaries, none of whom, Plaintiff asserts, was more
qualified than she.

(ECF No. 18-1.) Defendant contends that despite the differences in pay

between Plaintiff and these colleagues, Plaintiff has “failed to establish a prima facie case of
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discriminatory compensation by the Board” because she was not similarly situated to the
employees against whom she compares herself.

(ECF No. 17-1.) Alternatively, Defendant

claims that even if Plaintiff can establish a prima facie case of discrimination, the Board had
“legitimate, nondiscriminatory reasons for compensating Plaintiff as it did,” namely, “Plaintiff’s
predecessors and successors had significantly more (both quantitative and qualitative)
professional experience relevant to the positions” that she held, and Plaintiff “cannot point to any
evidence which suggests that the Board’s reasons were pretextual.” Id.
Under Title VII, it is illegal for an employer “to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a). Similarly, Section 1981 can
also “serve as the basis for bringing employment discrimination claims,” as that section states
in relevant part: “All persons within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts ... as is enjoyed by white
citizens.....’” Morrow v. Farrell, 187 F. Supp. 2d 548, 553-54 (D. Md. 2002) (citing 42 U.S.C.A.
§ 1981(a) (West)). Although Plaintiff has plead both violations of Title VII and Section 1981,
those claims will be discussed together, as “[t]he same analysis applies to race discrimination
and retaliation claims under both Title VII and Section 1981. Tibbs v. Baltimore City Police
Dep't, No. CIV.A. RDB-11-1335, 2012 WL 3655564, at *3 (D. Md. Aug. 23, 2012) (citing
James v. Booz–Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir.2004))
Claims brought under Title VII and Section 1981 can be proven by either circumstantial
or direct evidence.

Worden v. SunTrust Banks, Inc., 549 F.3d 334, 341 (4th Cir. 2008).

However, “[w]here the record contains no direct evidence of discrimination,” which Plaintiff

7

concedes here, then Plaintiff’s “claims must be analyzed under the burden-shifting scheme
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

2

Tibbs, 2012 WL

3655564, at *3. In McDonnell Douglas, the United States Supreme Court established a threestep burden shifting scheme whereby:
the plaintiff-employee must first prove a prima facie case of discrimination by a
preponderance of the evidence. If she succeeds, the defendant-employer has an
opportunity to present a legitimate, non-discriminatory reason for its employment
action. If the employer does so, the presumption of unlawful discrimination
created by the prima facie case drops out of the picture and the burden shifts back
to the employee to show that the given reason was just a pretext for
discrimination.
Wang v. Metro. Life Ins. Co., 334 F. Supp. 2d 853, 862 (D. Md. 2004) (citing Mackey v.
Shalala, 360 F.3d 463, 468 (4th Cir.2004)). Despite the burden shifting nature of this process,
however, the plaintiff always bears the burden of proving that the employer intentionally
discriminated against her. Morgan v. City of Rockville, No. GJH-13-1394, 2015 WL 996630, at
*4 (D. Md. Mar. 4, 2015) (internal citations and brackets omitted).
In order “[t]o establish a prima facie case of discrimination in pay,” under Title VII and
Section 1981, Plaintiff “must show: (1) she is a member of a protected class; (2) she is as
qualified as employees not of the protected class; and (3) she was paid less than other
comparably qualified employees.” Trusty v. Maryland, 28 F. App'x 327, 329 (4th Cir. 2002);

2

Plaintiff’s motion contains no allegation of direct evidence of racial discrimination, and
at the motions hearing Plaintiff’s counsel conceded that no such direct evidence exists in this
case. Plaintiff does relate the testimony of a co-worker, Ms. Laurie Dale, who agreed at
deposition with Plaintiff’s counsel’s assertion that Plaintiff was not paid more money by the
Board because she was an African-American. (ECF No. 18-9.) However, there is nothing in the
record that shows how Ms. Dale arrived at that conclusion. In fact, Ms. Dale, who was not
Plaintiff’s supervisor, noted that she was unfamiliar with the process of assigning salaries to
positions and that she did not have any authority over salary determinations. (ECF No. 18-9.)
Accordingly, without a specific factual foundation, such an unsupported opinion is not sufficient
to constitute a genuine dispute of material fact. Mettle v. CSX Transp., Inc., 221 F. App’x 262,
264 (4th Cir. 2007).
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Morgan, 2015 WL 996630, at *6 (“[t]o establish a prima facie case of racial discrimination with
respect to compensation, a plaintiff must show that he was paid less than a similarly situated
individual not in h[is] protected class”). Because Plaintiff is an African-American woman, and
her status as “a member of a protected class” is not disputed, only the second and third prongs
are relevant to this analysis.
In support of her claim that she was paid less than “similarly situated” white employees,
Plaintiff has produced two charts, in which she compares her salary, experience, and
qualifications to those of six white employees of the Board. Those charts, which can be found in
Plaintiff’s reply memorandum (ECF No. 18-1), are replicated below with several additions and
clarifications so as to accurately reflect the entirety of the record:
ACCOUNTS PAYABLE CLERK/SPECIALIST
Employee

Education

Experience

Starting
Date

Tammy
McCarter
(white)

B.S. Business
Admin.

Patricia
Webster
(white)

High School
Degree

Mary
Gibbs
(Black)

High School
Degree & 6
months from

14 years of experience in
area of finance and
accounts payable,
accounts receivable,
cost accounting, and
profit and loss statement
preparation
Employed by the Board
since 1979. Prior to her
employment with the
Board, she had 8 years of
experience in book
keeping and as an office
manager. She had 27 years
of experience in the
Finance Office when she
was appointed to Accounts
Payable Specialist
13 years as a bank teller
with 10 as “he ad
tel ler ” r e sp o n sib le

9

Starting
Salary

Last
Work
Day

Final
Salary

08/31/04

$36,000

07/01/06

$37,454

08/2006

$39,233

07/30/12

$44,306

07/01/12

$26,717

07/01/13

$30,933

Assoc. Degree
in accounting

Karen
Robinson
(white)

High School
Degree

fo r t he ma n a ge me nt
o f o t her te lle r s. No
experience in Accounts
Payable or Payroll
Initially hired as an
Accounts Payable
Associate. She had 18
years’ experience as
customer service
representative at a local
bank, and 7 years as an
accounts clerk to the City
of Cambridge

07/01/13

$29,011

Still
employed

Current
Salary
Not
Known

PAYROLL SPECIALIST
Name

Education

Experience

Starting
Date

Starting
Salary

Last
Work
Day

Final
Salary

Elizabeth
Fiorenza
(white)
Beth
Wilson
(white)

High School
Degree

10 years as Accounting
Clerk and 3 years
payroll
12 years finance
experience as a
manager at a bank,
nearly 7 years in HR,
and 3 years payroll
experience
13 years as a bank teller
with 10 as “he ad
tel ler ” r e sp o n sib le
fo r t he ma n a ge me nt
o f o t her te lle r s. 1
ye ar ( b y t he n) as
Acco u n ts P a yab l e
Cl er k. No experience
in Payroll
10 years in office
management, 3 years
payroll, and 4 years as
accounting clerk

11/16/04

$33,500

08/31/10

$40,935

09/16/10

$42,589

07/01/13

$45,459

07/01/13

$30,933

10/2014

$32,341

12/08/14

$38,511

High School
Degree
and had
earned 53 credits
towards a degree
in business
administration

Mary
Gibbs
(Black)

High School
Degree
& Associates
Degree in
Accounting

Lori
Gray
(white)

High School
Degree

As
of
20152016
$40,428

“When a plaintiff bases the discrimination entirely upon a comparison to employees from
outside her protected class,” as Plaintiff does here, she “must demonstrate that the comparator
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was ‘similarly situated’ in all relevant respects.” Watson v. HSU Dev., Inc., No. GJH-13-2071,
2015 WL 3545623, at *3 (D. Md. June 5, 2015) (citing Sawyers v. United Parcel Serv., 946
F.Supp.2d 432, 442 (D.Md.2013) aff'd, No. 13–1777, 2014 WL 2809027 (4th Cir. June 23,
2014)); see also Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir.2008) (“The
similarity between comparators ... must be clearly established in order to be meaningful.”). And
“[t]he appropriate factors to consider in a discriminatory compensation claim include whether the
Plaintiff and those who she claims are similarly situated had the same or substantially similar
experience, education, duties, and qualifications.” Watson, 2015 WL 3545623, at *3; see also
Morgan, 2015 WL 996630, at *7 (“[t]o establish a prima facie case of discriminatory
compensation an employee ... must establish that the work was substantially equal in degree of
skill, effort, and responsibility and was performed under similar conditions”) (citing Itrube v.
Wandel & Golterman Techs., Inc., 23 F.3d 401 (4th Cir.1994)).
This Court’s decision in Romeo v. APS Healthcare Bethesda, Inc., 876 F.Supp.2d 577
(D.Md.2012), illustrates how this “similarly situated” standard is applied. There, Romeo, an
African-American woman, was hired as an accounts receivable revenue supervisor by a
healthcare management company. Id. at 582. Her job title was later changed to “Accountant
III,” though her salary remained the same despite receiving positive employer reviews of her
work performance. Id. at 583. Shortly after that title change, her employer hired a white male
for an “Accountant III” position and paid him at a higher salary than Romeo. Id. Based on this
and other evidence in the record, Romeo filed suit against her employer, alleging, among other
things, race and sex discrimination in violation of Title VII. Id.
This Court, however, granted the employer’s motion for summary judgment, finding that
Plaintiff and the white employee were not similarly situated, and thus Plaintiff was unable to

11

establish a prima facie case of discrimination. Specifically, we explained that “[the employer]
presented evidence that Romeo had about half as many years of experience as [the white male
employee], and lacked [the white male employee’s] master's degree.” Id. at 592. Given those
differences, we concluded that “one cannot reasonably infer” that Romeo was paid less than the
white male employee because she was an African-American woman. Id.
Plaintiff cannot establish a prima facie case of discrimination based on the above
comparison evidence because, as was the situation in Romeo, there are significant differences
between her and the six individuals against whom she compares herself. At the time she was
hired for the position of an Accounts Payable Clerk, Plaintiff had a high school diploma and was
working towards her associate’s degree. Additionally, she had worked for nearly thirteen years
as a bank teller and “Head Teller” for a bank on the Eastern Shore, through which she was
responsible for teller training and supervision, reconcilement of general ledger accounts, and data
entry. At her deposition, however, Plaintiff was unable to articulate with any specificity how
such experience was a surrogate for direct experience in accounts payable or payroll. GIBBS
DEPOSITION, at 138-39, 148 (ECF No. 18-3). Additionally, Plaintiff has presented no additional
evidence, expert or otherwise, suggesting that her bank teller experience was comparable.
Plaintiff, in particular, takes issue with the higher salaries of three of the six white
employees with whom she claim comparability: Ms. Karen Robinson, Ms. Beth Wilson, and Ms.
Lori Gray. But each of these employees had greater relevant-work experience, levels of
education, qualifications, or some combination thereof. Indeed, Ms. Robinson had eighteen years
of bank experience, compared to Plaintiff’s thirteen, and Ms. Robinson had seven years as an
accounts clerk, whereas Plaintiff did not have any work experience in accounts payable or
payroll prior to accepting the position. Similarly, Ms. Wilson and Ms. Gray each had three years

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of payroll experience compared to Plaintiff who, at the time she began as a Payroll Specialist, did
not have any payroll experience beyond verifying timecards for tellers she had supervised at her
prior job.
Plaintiff acknowledges these differences but nonetheless contends that “certainly any
small difference in experience between Mrs. Gibbs and her white comparators would not equate
to their very sizeable salary differential.” But this is not self-evident, and, as stated above,
Plaintiff has presented no evidence to suggest that her experience was comparable or that the
differences noted were, in fact, “small.” While there may be instances where, without such
evidence, the Court could reasonably conclude that differences in education, training, or
experience for a given job were “small,” this is not one of them.
Nevertheless, even if Plaintiff could establish a prima facie case of discrimination,
Defendant would still be entitled to summary judgment. As stated above, “[i]f the plaintiff
produces evidence for each element of the prima facie case, the burden of production shifts to the
employer to articulate a ‘legitimate, nondiscriminatory’ reason for its actions.” Morgan, 2015
WL 996630, at *4 (internal citations and quotations omitted). But “[i]f the employer produces
evidence of a nondiscriminatory reason for its actions,” then “the burden returns to the plaintiff
to show that the employer's proffered permissible reason for taking an adverse employment
action is actually a pretext for discrimination.” Id. Where “the plaintiff cannot produce evidence
that would allow the trier of fact to find the employer's reasons were a pretext for discrimination,
defendant is entitled to summary judgment as a matter of law.” Id. In assessing Defendant’s
asserted nondiscriminatory reason, “[i]t is not the province of the courts ‘to decide whether the
reason was wise, fair, or even correct, ultimately, so long as it truly was the reason.’” Kess v.

13

Mun. Employees Credit Union of Baltimore, Inc., 319 F. Supp. 2d 637, 645–46 (D. Md. 2004)
(citing Dugan v. Albemarle County School Bd., 293 F.3d 716, 722 (4th Cir.2002)).
Here, Plaintiff has failed to present sufficient evidence that Defendant’s proffered
explanation for paying a lower salary was false and instead simply pretextual. Defendant
explained that it paid Plaintiff a lower salary than her white colleagues because those other
employees had “significantly more (both quantitative and qualitative) professional experience
relevant to the positions” than Plaintiff. Such a race-neutral explanation is one that this Court has
previously accepted as a valid non-discriminatory reason.

Romeo, 876 F. Supp. 2d at 592

(“relative employee qualifications are widely recognized as valid, non-discriminatory bases for
any adverse employment decision”; a plaintiff's “unsubstantiated allegations and bald assertions
concerning her own qualifications ... fail to ... show discrimination”); see also Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) (“relative employee qualifications are
widely recognized as valid, non-discriminatory bases for any adverse employment decision”);
Jones v. Dole Food Co., 827 F. Supp. 2d 532, 557 (W.D.N.C. 2011), aff'd, 473 F. App'x 270 (4th
Cir. 2012) (“Greater work experience is a legitimate, non-discriminatory reason for paying more
experienced employees more than an employee in a protected class”) (citing Darden v. Housing
Authority of Baltimore, 2006 WL 3231964, at *6 (D.Md. Nov. 7, 2006)).
It is Defendant’s position that these differences between the employees were, in fact,
meaningful. Though Plaintiff may contend that this was not a good reason to make salary
distinctions, Plaintiff has presented no evidence that it was not the real reason and instead was
pretextual. Even if Defendant’s reasons were not effective or wise hiring policy, the Court
would still not second guess those reasons absent evidence that they were pretextual. Anderson
v. Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th Cir. 2005) (“We do not sit as a

14

super-personnel department weighing the prudence of employment decisions made by the
defendant”) (internal citations omitted). Consequently, absent such evidence of pretext, this
Court is required to find that Plaintiff cannot meet her burden under the pretext prong of the
McDonnell Douglas framework.
Plaintiff does not point to any evidence suggesting that the reason proffered by Defendant
is not true. Instead, she merely argues that it is “undisputed that [her] comparators did not have
significantly more professional experience or education than [her].” But, as pointed out above, it
is not at all “undisputed.” To the contrary, Plaintiff has put forward no evidence other than her
own “bald assertions” about her own experience to suggest that her experience was comparable,
nor to seriously put into dispute Defendant’s evidence to the contrary. Plaintiff could have
offered her own testimony as to how her experience was substantially similar to payroll or
accounts payable experience, but could not except in generalities. Plaintiff could have offered
expert evidence on this issue but did not. Plaintiff could have attempted to get concessions from
Defendant’s witnesses that the experience was comparable, but did not. Plaintiff could have
developed circumstantial evidence that Defendant didn’t really rely on these differences in
setting salary or was unaware of the differences prior to setting salary, but did not. In the
absence of such evidence, there is nothing from which a jury could reasonably conclude that the
legitimate business reason proffered by Defendant was a pretext for discrimination.
At the motions hearing, Plaintiff’s counsel further argued that the factors set forth under
the hiring Guidelines were not consistently applied between the white employees and Ms. Gibbs.
For instance, as it relates to the accounts payable position, Plaintiff argued that some candidates
appeared to have a higher salary based, in part, on having a college degree, yet Ms. Gibbs was
“only” six months away from completing her associate’s degree and appeared to receive no

15

similar credit. Admittedly, as it relates to the Board’s application of its hiring factors or
Guidelines, the Court cannot discern a precise pattern of how each factor was weighted in every
case or whether the various factors were always weighted with perfect consistency. Even so, a
lack of mathematical precision in the application of these Guidelines does not render them a
pretext. Similarly, Plaintiff’s own view of how the factors should be weighted is insufficient to
show that they were a pretext for discrimination.
Finally, it is worth briefly addressing two remaining factual points that Plaintiff makes in
her response to the motion for summary judgment, though, in doing so, the Court is mindful of
the fact that Plaintiff does not demonstrate how either of these points are supportive of her legal
argument under the McDonnell Douglas framework. First, Plaintiff states that she was the first
African-American employed by the Board in the Financial Department. Although context can be
relevant in determining the existence of pretext, Plaintiff has presented no evidence of how this
historical fact makes Defendant’s proffered reasons in her case false and pretextual, and without
such evidence, the mere fact that Plaintiff was the first African-American employee is
insufficient to show unlawful discrimination. Hawkins v. Leggett, 955 F. Supp. 2d 474, 492 (D.
Md. 2013) (“Although statistics are ‘unquestionably relevant’ to proving a disparate treatment
claim under Title VII, a mere statistical disparity is generally insufficient to prove disparate
treatment.”). Furthermore, as it relates to context, it is important to bear in mind that Plaintiff
was initially placed in the middle of the salary range for her position upon hire, and within her
first year, received step and salary increases totaling more than twenty percent of her original
salary; a fairly sizeable pay progression that is not consistent with her accusations of racially
motivated under-compensation.

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Second, Plaintiff claims that prior to accepting her new position as a Payroll Specialist, a
supervisor with the Board informed her that the change from Accounts Payable Specialist to
Payroll Specialist was a promotion entitling her to greater pay, yet she did not receive an
increase in pay and the Board later informed her that the move was a lateral and not a promotion.
But, even if it were true that Plaintiff’s new position should have been, contrary to Defendant’s
contention, a promotion and not a lateral move, Plaintiff has not shown how that factual dispute
would support her claim of discriminatory pay as she has neither shown that “similarly situated”
white employees were given such promotions upon a transfer of departments, nor has she
explained how such evidence shows pretext on the part of the Board.

IV. Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED. A
separate order shall follow.

Dated: January 6, 2017

/s/
J. Mark Coulson
United States Magistrate Judge

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