Dr. Archie Earl v. Norfolk State University et al

Filing 98

OPINION AND ORDER re 75 MOTION for Summary Judgment filed by The Board of Visitors of Norfolk State University, The Commonwealth Of Virginia, Norfolk State University. Defendants' motion for summary judgment is GRANTED in par t, and DENIED in part. While the parties may choose to resume settlement discussions with a Magistrate Judge in the wake of this opinion in the limited time remaining before trial, if a final settlement is not reached in the interim, trial will comme nce as scheduled on Tuesday, March 22, at 10 a.m. as to the Equal Pay Act claims advanced by Dr. Earl, Dr. Coan and Dr. Agyei. Summary judgment is GRANTED in favor of Defendants as to the claims advanced by the remaining four Plaintiffs. If the parti es wish to resume settlement discussions with Magistrate Judge Krask, they should contact the Magistrate Judge Courtroom Deputies at 757-222-7222. Signed by District Judge Mark S. Davis and filed on 3/17/16. Copies distributed to all parties 3/17/16.(ldab, )

UNITED

STATES

DISTRICT COURT

EASTERN DISTRICT OP VIRGINIA

Norfolk Division

DR.

ARCHIE EARL,

et al.,

Plaintiffs,
Civil No.

v.

NORFOLK STATE UNIVERSITY,

2:13cvl48

et al.,

Defendants.

OPINION AND ORDER

This

matter

is

before

the

Court

on a motion

for summary

judgment filed collectively by Norfolk State University ("NSU")/
Dr.

of

Tony Atwater—former President of NSU,

Norfolk

State

(collectively,
lead

the

(collectively,

and

"Defendants").

Plaintiff,

represents

University,

Dr.

six

summary judgment.

timely reply brief.1

ECF

Archie

ECF No.

85.

75,

("Dr.

named

filed

Commonwealth of

Nos.

Earl

additional

"Plaintiffs"),

the

the Board of Visitors

76.

a

joint

Defendants

Counsel

Earl"),

plaintiffs

Virginia

in

for

who

also

this

case

response

opposing

thereafter

filed a

ECF No. 86.

1 The Court notes at the outset that oral argument was not conducted in
this case due in part to the compressed timeframe resulting from the

impending
analysis
different
prior to

trial date, as the summary judgment motion, which required
of seven different plaintiff professors working in four
departments at NSU, was not ripe until seven business days
trial.
Had this Court not entered an expedited briefing

order there would have been even less time prior to trial

to address

I.

The
are

FACTUAL AND PROCEDURAL HISTORY

factual

and procedural history of

well-documented,

and

the

Court

the

instant action

incorporates

herein

the

background set forth in prior Orders in this case.

ECF Nos. 21,

33,

a

and

42.

In

sum,

associate professor at

lead
NSU,

plaintiff
filed the

Dr.

Earl,

instant

long-time

action asserting

that Earl and other male professors were discriminated against

based

on

their

race,

sex,

and

age.

Earl

further

alleged

retaliation against him based on his efforts to lead the
against

salary

Opinion

and

Plaintiffs'
Defendants'

inequities

Order

dated

second
motion

at

June

amended
to

NSU.

dismiss

Pursuant

26,

2014,

complaint
was

the

to

the

only

that
Equal

this

fight

Court's

claim

survived
Pay

Act

in
the

("EPA")

claim, alleging that Earl, and other male professors, were paid
unequal wages for performing substantially the same jobs, under
similar working conditions, as female professors.
The
for

Court

thereafter granted,

conditional

class

in part,

certification,

ECF

ECF No. 33.

Dr.

Earl's

No.

42,

motion

and

additional male plaintiff professors opted into the class.
Nos.

57,

59.

Pursuant

to

a

consent

order

of

dismissal

ten

ECF
dated

the motion.
ECF No. 81.
As reflected in the record, it appears that
Plaintiffs' handling of discovery in this case may have contributed to
delays in the filing of the summary judgment motion.
ECF Nos. 63-65,
68, 70. Ruling on summary judgment without a hearing is permitted by
the governing rules of Civil Procedure.
Fed. R. Civ. P. 78(b); E.D.
Va.

Loc.

Civ.

R.

7(J).

February 5,
action.

2016, three named plaintiffs were dismissed from the

ECF

granted

No.

70.

was

(1)

the

Coan

and

Dr.

T.

Political

week

dismissed.

plaintiff professors
NSU:

second

one

approximately

plaintiff

Walter

A

Mathematics

Science

No.

of

of

Dr.

Department—Dr.

additional

named

remaining

seven

Archie

Chijioke

departments
Earl,

Technology

Aberra

was

The

71.

the

dismissal

an

four different

(2)

and

order

and

Department—Dr.

Wall;

Golembiewski

later,

ECF

are part

Curtiss

consent

Dr.

at

Boyd

Department—Dr.

Akamiro;

Meshesha;

(3)

and

the

(4)

the

Sociology Department—Dr. William Agyei.

Defendants'

summary judgment motion

seeks

the claims of all seven remaining Plaintiffs.
that

each

Plaintiff's

claim

fails

judgment

as

to

Defendants assert

either

because:

(1)

such

Plaintiff does not set forth a prima facie case as he fails to

identify a valid female "comparator" that is being paid more for

performing work that is "substantially equal in skill,

effort,

and

or

responsibility

"even

if

a

sufficiently

under

similar

facie

case

prima

demonstrated

justified by gender-neutral
Craven

Cmty.

Coll. ,

Consistent with
the

relevant

this

55

were

that

the

Court's

943,

prior

analysis

conditions";

established,

factors,"

F.3d

"comparator"

working

salary
Strag v.

948,

950

ruling,
is

(2)

[Defendants]

differential
Bd.
(4th

ECF No.

addressed

was

of Trustees,
Cir.

42,
herein

1995).

at

20,

on

a

department by department basis because "different departments in
3

universities

require

generally forecloses
the Equal Pay Act,"

distinctive

Federal

and

such

fact

"any definitive comparison for purposes of
Strag,
II.

The

skills,"

55 F.3d at 950.

STANDARD OF

Rules

of

Civil

REVIEW

Procedure

provide

district court "shall grant summary judgment if

[a]

that

a

movant shows

that there is no genuine dispute as to any material fact and the
movant
Civ.

is

P.

entitled to

56(a).

dispute

judgment as

"[T]he mere

between

the

a matter of

existence

parties

will

of

not

law."

Fed.

R.

some alleged factual

defeat

an

otherwise

properly supported motion for summary judgment; the requirement
is that there be

no genuine issue of material fact."

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986) .

Anderson

A fact is

"material" if it "might affect the outcome of the suit," and a

dispute is "genuine" if "the evidence is such that a reasonable
jury could return a verdict for the nonmoving party."
248.

Id.

at

A party opposing a summary judgment motion "cannot create

a genuine issue of material fact through mere speculation or the

building
Phelan,
Hardy,

of
526

one
F.3d

inference
135,

769 F.2d 213,

Rule 56(c)

214

140

upon
(4th

(4th Cir.

another."
Cir.

2008)

Othentec

Ltd.

v.

(quoting

Beale

v.

1985)).

addresses the applicable procedure for pursuing,

and defending against, summary judgment, explaining as follows:

(c)

Procedures.

(1) Supporting Factual Positions. A party asserting
that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in
the
record,
including
depositions,
documents,
electronically stored information, affidavits or
declarations, stipulations (including those made
for purposes of the motion only),
admissions,
interrogatory answers, or other materials; or
(B)
showing that the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce
admissible evidence to support the fact.

Fed. R.

Civ.

P.

56 (c) (emphasis added).

Rule 56 further states

that "[i]f a party fails to properly support an assertion of

fact or fails to properly address another party's assertion of
fact as required by Rule

56(c),"

the Court has discretion to

"consider the fact undisputed for purposes of the motion."
R.

Civ.

P.

Fed.

56(e).

Although the initial burden on summary judgment obviously
falls

on

the

moving

party,

supporting summary judgment,
upon

the mere

generally

set

affidavits,

allegations
forth

or

other

once

of

specific

facts,

record

materials

(1986);

Drive Auto.

(4th

carry

the

Cir.

2015) .

burden

to

In

show

advances

the pleadings,

Celotex Corp.

408

movant

evidence

the non-moving party may not rest

issue for trial.
Butler v.

a

v.

other

the

supported

of Am.,

words,

absence

instead must
by

documents,

illustrating

Catrett,

Indus,

but

477 U.S.
Inc.,

while

of

a

the

a

genuine

317,

323-24

793 F.3d 404,
movant

genuine

must

issue

of

material
movant

fact,

to

477 U.S.

himself
matter
trial."

when such burden is met,

establish the

at 322-23.

to
but

weigh
to

existence

At that point,

the

evidence

determine

Anderson,

of

477 U.S.

is up

such an

to

issue.

the

non-

Celotex,

"the judge's function is not

and

whether

it

determine

there

at 249.

is

a

the

truth of

genuine

issue

the
for

In doing so, the judge must

construe the facts and all "justifiable inferences" in the light
most

favorable to the non-moving party,

make credibility

determinations.

and the judge may not

Id.

at

255;

Reyazuddin

v.

Montgomery Cty., 789 F.3d 407, 413 (4th Cir. 2015).
In addition to the above,

a rule devoted

provision

this Court's Local Rules include

to summary judgment practice,

requiring

the

moving

party

which includes

to

set

forth

a

"a

specifically captioned section listing all material facts as to
which the moving party contends there is no genuine issue," as
well as citations to the record to support such facts.
Loc.

Civ.

responsive

R.

56(B).

brief

The

should

local

rule

include

further

a

provides

similar

E.D. Va.
that

a

"specifically

captioned section listing all material facts as to which it is
contended

that

there

exists

a

genuine

citations to the record.

Id.

the

truth of

Court

to assume

moving party as

the

undisputed that

by the opposing party.

Id.

issue,"

as

well

as

The local rule expressly permits

any

facts

are not

identified by the

expressly controverted

III.

Defendants

supported

by

depositions,

Plaintiffs

have

presented

citations

to

affidavits,

oppose

summary

remaining Plaintiffs,

DISCUSSION

the

and

a

summary

judgment

evidentiary

internal

judgment

as

brief

to

including

business

NSU

record

records.

four

of

the

seven

but somewhat surprisingly, after complete

discovery in a case that has been pending for multiple years,

Plaintiffs'
facts

opposition includes no clear statement of disputed

and very limited evidence.

For the reasons

discussed

below, summary judgment is GRANTED in favor of Defendants as to
the claims advanced by Plaintiffs Dr.
Golembiewski

and

Dr.

(Political Science).

Akamiro

Wall

(Mathematics),

(Technology),

and

Dr.

Meshesha

As to the remaining Plaintiffs, Dr.

and Dr. Coan (Mathemtatics), and Dr. Agyei

Earl

(Sociology), viewing

the evidence in a light most favorable to Plaintiffs,

judgment is DENIED.

Dr.

summary

While Defendants may have a meritorious

argument either at the prima facie stage and/or the affirmative
defense

stage

as

to

one

or

more

of

Plaintiffs, based on the current record,

these

three

remaining

such matters are issues

properly left to the factfinder.
A. Equal Pay Act Standard

The Equal Pay Act provides as follows:

No employer having employees subject to any provisions
of
this
section
shall
discriminate,
within
any
establishment in which such employees are employed,

between employees on the basis of sex by paying wages
to employees in such establishment at a rate less than
the rate at which he pays wages to employees of the
opposite sex in such establishment for equal work on
jobs the performance of which requires equal skill,
effort, and responsibility, and which are performed

under similar working conditions, except where such
payment is made pursuant to (i) a seniority system;
(ii) a merit system; (iii) a system which measures
earnings by quantity or quality of production; or (iv)
a differential based on any other factor other than
sex: Provided, That an employer who is paying a wage
rate

differential

in

violation

of

this

subsection

shall not, in order to comply with the provisions of
this subsection, reduce the wage rate of any employee.

29 U.S.C.

§ 206(d)(1)

(first emphasis added).

Interpreting and

applying such statute, our court of appeals—the Fourth Circuithas

held:

[I]n order

to establish a

prima

facie

case under

the

Equal Pay Act, the plaintiff bears the burden of
receives lower pay than a
showing that
[]he (1)
(2)
for
performing
work
[fe]male
co-employee
substantially
equal
in
skill,
effort,
and
responsibility under similar working conditions.
The
comparison must be made "factor by factor with the
[fe]male comparator." Houck v. Virginia Polytechnic
Institute,

10

F.3d

204,

206

(4th

Cir.

1993).

Additionally, the plaintiff must identify a particular
[fe]male "comparator" for purposes of the inquiry, and
may
not
compare
h[im]self
to
a
hypothetical
or
"composite"

Strag,

55

F.3d

demonstrating

a

[fe]male.

at

Id.

948.

prima

If

facie

a

plaintiff

case,

the

is

burden

successful
shifts

employer "to prove by a preponderance of evidence,
differential

is

justified by

statutory exceptions

system,

(2)

set

the

forth in

a merit system,

(3)

existence

of

§ 206(d)(1):

to

in
his

that the pay

one

of

(1)

a

the

four

seniority

a system that measures earnings
8

by

quantity

or

quality

of

production,

based on any factor other than sex."
at 207).

or

Id.

(4)

a

(citing Houck, 10 F.3d

If the employer satisfies such burden,

claim fails

"unless

the plaintiff

defendant's evidence."

differential

the plaintiff's

can satisfactorily rebut

Id.

While such burden shifting scheme is in some ways

to

that

the

applicable

to

Title

VII

differs in an important respect.

discrimination

Notably,

similar

claims,

it

for an EPA claim,

a

prima facie case operates to shift "[t]he burden of production
and

persuasion

...

preponderance

of

resulted

one

statute."
344

from

the
of

to

evidence,
the

Brinkley-Obu v.

(4th Cir. 1994)

978 F.2d 158,

161

Works

contrast,

v.

defendant

that

allowable

'to

the

wage

causes

Hughes Training,

show,

by

a

differential

enumerated

by

the

Inc., 36 F.3d 336,

(quoting Fowler v. Land Management Groupe,

(4th Cir. 1992)); see King v. Acosta Sales &

Mktg. , Inc. , 678 F.3d 470,
Glass

the

Brennan,

474 (7th Cir.
417

U.S.

for a Title VII claim,

188,

2012)

(citing Corning

204,

(1974)).

a prima facie case

In

serves to

shift only the burden of production to the defendant to advance
a

non-discriminatory

justification

burden of persuasion remain[ing]
that

the

proffered

explanation

for

its

acts,

with

"the

on the plaintiff to demonstrate
is

pretextual

and

that

the

defendant

was

Brinkley-Obu,

actually motivated
36

F.3d

at

344

by

discriminatory

(citation

omitted).

intent."2
While

the

burden that is shifted to Defendants in an EPA case is proof by
"a preponderance of the evidence,"

likely because such burden is

one of persuasion and not just production,

it has been described

by the Fourth Circuit as a "heavy" burden.
788 F.2d 985,

992

318 F.3d 1066,

affirmative

factor of

(4th Cir.

1078

(11th Cir.

defenses

sex

1986);

is

heavy

provided no

(internal quotation marks

cf.

2003)

and

basis

the

same

trial,

evidence

evidence

such

been

[the defendant]

Steger v. Gen.

must

for

demonstrate

the

wage

"the

and

that

In order to

can

conclude

remained

that

uncontested

had

at

would be entitled to a directed verdict.

Brinkley v. Harbour Recreation Club,

180 F.3d 598,

1999)

As indicated above,

(overruled on other grounds).

burden is carried,

the

a defendant must present

court

presented

Co.,

differential.")

and citation omitted).

that

Elec.

("The burden to prove these

carry such burden on summary judgment,
sufficient

Brewster v. Barnes,

the plaintiff,

to rebut the defendant's evidence.

of course,
Strag,

614

(4th Cir.
if such

has the opportunity

55 F.3d at 94 8.

B. Analysis - Technology Department
Plaintiffs

Dr.

Golembiewski

and

Dr.

Akamiro

both

assert

that they suffered salary discrimination under the Equal Pay Act

2 Unlike Title VII claims, discriminatory intent need not be proven to
establish an EPA claim.
Brewster v.
(4th Cir. 1986) (citations omitted).
10

Barnes,

788

F.2d 985,

993

n.13

and point to Dr.

Eleanor Hoy as the only female "comparator" who

was

their

working

Defendants'

in

summary

department

judgment

and

motion

paid

a

asserts

greater

that

Dr.

salary.
Hoy

does

not perform substantially equal duties with substantially equal
responsibilities

because,

NSU.

as

compared

unlike Plaintiffs,

Rather,

prior

adjunct professor,

to

to

Drs.

Golembiewski

and

Akamiro

she is not a full-time professor at

2011,

Dr.

Hoy

was

only

a

part

time

and although she was appointed to a full-time

position in 2011,

it was not a full-time professorship,

instead an administrative position as

but was

"Special Assistant to the

Dean" and "Director of Retention" within the College of Science,

Engineering
increased

and

Technology.

when

she

was

Dr.

Hoy's

elevated

to

salary
the

administrative position of "Retention Czar."
such

factual

claims

with

associated with

Dr.

Such

further

facts

Sandra

J.

are

Deloatch,

Academic Affairs."

Plaintiffs'
not

of

NSU

by

Defendants support

"Provost

ECF
the

later

university-wide

internal

employment.

supported

the

NSU

75-4

No

documents

at

6-11.

sworn

and

affidavit

of

Vice

President

of

Deloatch Aff. HU 2, 22, ECF No. 75-1.

brief

dispute any of

statement

Hoy's

several

was

in opposition to summary judgment does

the Defendants'

undisputed

facts,

evidentiary submissions

which

on

their

face

or

establish

that Dr. Hoy's position at NSU involved job performance that was

not

substantially

equal

in

effort
li

or

responsibility

to

Plaintiffs

Golembiewski

and

Akamiro.

Furthermore,

Plaintiffs

fail to advance a counter-statement of facts and/or any evidence
in

conflict

Plaintiffs'
argument

with

Defendants'

summary

section

judgement
devoted

as

on these facts,

to this

brief

to

is

does

the

not

contrary,

even

include

advanced

an
Dr.

view

entry of

claims

the

by

summary judgment is appropriate

issue.

Based on the undisputed facts
Hoy

To

clearly signaling Plaintiffs'

Golembiewski and Dr. Akamiro,
that,

facts.

plainly

not

a

valid

advanced by Defendants,

comparator,

and

Plaintiffs

Dr.
have

failed to point to any other evidence that could support a prima
facie

EPA claim.

favor

of

Accordingly,

Defendants

Golembiewski

as

and Akamiro

to

summary judgment

the

EPA

because

claims

Plaintiffs

is

GRANTED

advanced
fail

at

by
the

in

Drs.
prima

facie stage of the EPA burden shifting analysis.
C.

Analysis - Mathematics Department: Dr. Wall

Plaintiff Dr. Curtiss Wall, a former NSU professor in the
Mathematics

claim.
relevant

Department

advances

an

Equal

Pay

Act

However, he does not dispute the fact that, during the
timeframe,

female professors
such

(retired),

concession,

comparators

that

his

salary

was

greater

than

in the Mathematics Department.
Dr.

Wall

teach

at

attempts
NSU

Engineering and Computer Science.
12

in

to
two

rely

on

different

all

of

the

Having made
three

female

departments:

1.

Prima

facie

case

As recognized in the Court's prior Opinion and Order issued

in this case, ECF No. 33, and as demonstrated by Fourth Circuit
precedent,

rare would be

the case where a university professor

can demonstrate that a professor from a different department is

a

valid

EPA

universities
definitive

Strag,

comparator

require

distinctive

comparison

55 F.3d

at

for

950;

facts,

that

Dr.

three

appropriate

of

EPA

substantially

that

foreclose

any

Equal

at

20.

Here,

Defendants

supported by affidavits,

indicating

No.

42,

identified

because

skill.

Pay

in

the

Wall's

in

skills

departments

of

comparators

equal

"different

purposes

ECF

advance undisputed
all

because

comparators

their

are

the

not

is

work

Specifically,

Act."

not

purported

comparators have PhDs in Computer Science (Dr. Humphries & Dr.
Rivzi) or Engineering (Dr. Morsi) as contrasted with Dr. Wall's
PhD

in

Mathematics

Additionally,

Dr.

Education.

Morsi

has a certification

science, and Dr. Wall does not.
75-2.

Because

Dr.

Deloatch

Wall

has

Aff.

earned

21.

to teach computer

Schexnider Aff.
"no

1

1 23,

graduate

ECF No.

credits

in

Engineering or Computer Science," he is "not qualified to teach
undergraduate courses in those disciplines per the requirements

of NSU's regional accreditor."
Notwithstanding

indicating

that

the

Deloatch Aff. 1 21.

Defendants'

skills

presentation

required
13

for

Dr.

of

Wall's

evidence

position

differ

from

that

of

the

three

comparators,

Plaintiffs'

responsive filing and attached exhibits do not: (1) dispute such
facts;

(2)

issue

present

through

similar to

provide

any conflicting facts;

argument

contained

in

the Technology Department

any

Accordingly,

opposition

to

or

(3)

their

brief.

claims,

summary

address

such

Rather,

Plaintiffs no not

judgment

on

this

issue.

summary judgment is GRANTED in favor of Defendants

as to the EPA claim advanced by Dr. Wall because his claim fails
at the prima facie stage of the EPA burden shifting analysis.
2.

Affirmative Defense

Alternatively, even if the Court assumes that a prima facie
case

were

affidavit

made

by

evidence

Dr.

Wall,

demonstrating

Defendants
that

any

offer
salary

undisputed
differential

between Dr. Wall and the comparators he identifies is justified

by gender-neutral factors.
establishes

that

both

Specifically,

"market

demands"

Defendants'

and

evidence

"academia

and

the

public view" place a higher value on Engineering and Computer

Science than they do on Mathematics.
offer nothing

Accordingly,
Court,

to

refute

Defendants'

Deloatch H 21.

the accuracy of

undisputed

such sworn statements.

facts

and the Court alternatively finds

are

the

have

identified

established a
salary

his

gender-neutral

differential;
14

and

accepted

by

that even if Dr.

identified a valid comparator from outside
Defendants

Plaintiffs

(2)

department:

factor

the
Wall
(1)

justifying

Plaintiffs

have

failed to rebut such evidence and offer no opposition to summary
judgment

on

this

issue.

alternatively GRANTED
EPA

claim

because

in

Summary

favor of

Defendants

Judgment

Defendants

have

is

as

carried

therefore

to Dr.

their

Wall's

burden

of

persuasion to establish an affirmative defense.
D. Analysis - Political Science Department

Plaintiff

Dr.

Meshesha

asserts

that

he

suffered

salary

discrimination under the Equal Pay Act and points to Dr. Barnes
as the female "comparator" within his department who was paid a

greater

salary.

Defendants

assert

that Dr.

viable comparator based on the prior

Barnes

is not a

"valuable experience"

she

brought to the faculty when she returned to teaching in 2009
after

having

served

as

an

NSU

Dean

and

Vice

President

for

Academic Affairs.

Alternatively, Defendants assert that even if

Dr.

valid

Barnes

experience

is

a

serves

as

comparator,

a

her

gender-neutral

salary differential with Dr. Meshesha.
Defendants'

basis

administrative

justifying

the

It should be noted that

claim on summary judgment is not in any way based on

any perceived shortcomings
performance.

prior

As

in

Dr.

set forth below,

Meshesha's

qualifications

Summary Judgement

or

is granted

in favor of Defendants at to this claim.
1.

The

Court

record in a

agrees

Prima facie case

with

Plaintiffs

that,

light most favorable to Plaintiffs,
15

considering
Defendants

the
fail

to

demonstrate

identified

on

an

summary

improper

judgment

comparator.

neither offer their own facts,

absence

of

evidence

full-professor

with

PhD

Dr.

Meshesha

Specifically,

has

Defendants

nor demonstrate that there is an

establishing
a

that

in

that

Dr.

Public

Meshesha,

Administration,

a

tenured
not

efforts,

perform work requiring substantially equal skills,

does

and

responsibility, under similar working conditions, as Dr. Barnes,

a

professor

in

Government.

the

While

same

department

Defendants

with

assert

a

that

PhD

Dr.

in

Arts

Barnes

in

brings

additional skills to the equation that are highly valued by NSU

and

not

possessed

additional

skills

by

are

Dr.
not

Meshesha,
properly

on

this

considered

as

record,
part

such

of

the

prima facie analysis because there are no facts suggesting that
such skills are required for the position that Dr. Barnes holds
at NSU.

See 29 C.F.R.

required

to perform a

§ 1620.15(a)

job

(indicating that the "skill"

"must be measured

in terms

of

the

performance requirements of the job" and that "possession of a
skill not needed to meet the requirements of

considered
skill");
(E.D. Va.

in

Lovell
2003)

making
v.

a

determination

BBNT Sols.,

LLC,

(explaining that,

295

the job cannot be

regarding

622

at the prima facie stage,

the

2d

relevant

comparison is

the job,

not a comparison of the skills possessed by individual

16

the

Supp.

of

611,

"a comparison of

F.

equality

skills required by

employees")

(emphasis

added)

individuals are, however,

Such

skill

differences

between

unquestionably relevant at the second

stage of the analysis after the burden has shifted to Defendants
because

can

.

" [a]

.

difference

in

. justify unequal

the

skills

wages

of

under

individual

the

catchall

employees

statutory

exception for wage differentials based on 'any factor other than

sex.'"
Univ.

Lovell, 295 F.
Bd.

("The

of

Trustees,

actual

relevant

in

Supp. at 622 n.ll; see Cullen v. Indiana
338

differences
the

F.3d

693,

between

affirmative

699

n.2

(7th Cir.

educational

defense

of

2003)

pedigree

proving

a

are
pay

differential based on 'any factor other than sex.'").
2.

Affirmative Defense

When a plaintiff sets forth a prima facie EPA claim "[t]he
burden of production and persuasion then shift to the defendant
'to show,

by

a preponderance

of

the

evidence,

that

the

wage

3 While Plaintiffs have not advanced evidence individually addressing
the similarity in skill, effort, and responsibility required to

perform the jobs held by Dr. Barnes and Dr. Meshesha, the nature of
Defendants' summary judgment motion does call into question Plaintiffs
ability to do so.
Rather, Defendants' motion focuses solely on the
claim that Dr. Barnes' valuable administrative experience makes her an
improper comparator (a claim this Court rejects).
Because Defendants
have not effectively challenged the substantial equality of the two
jobs in any other respect, Plaintiff Meshesha was not obligated to
present affirmative evidence on summary judgment to demonstrate his
ability to prove a prima facie case.
Cf. 10A Fed. Prac. & Proc. Civ.
§

2727

(3d ed.)

("[A]t

least

in

cases

in which

the

nonmoving party

will bear the burden of proof at trial, the movant can seek summary
judgment by establishing that the opposing party has insufficient
evidence to prevail as a matter of law, thereby forcing the opposing
party to come forward with some evidence or risk having judgment
entered against him.") (emphasis added).
17

differential

enumerated

(quoting

resulted

by

the

Fowler,

from

one

statute."

978

F.2d

of

the

allowable

Brinkley-Obu,

at

161).

36

causes

at

344

relying

Here,

F.3d

on

the

statutory defense "any factor other than sex," Defendants assert

that Dr.

Barnes is paid a higher salary than Dr. Meshesha as a

result of her
NSU.

former experience as Dean and Vice

President at

As stated in a sworn affidavit submitted by NSU's current

Provost

and

Vice

President

of

Academic

Affairs,

Dr.

Barnes'

experience as a former high-ranking administrator at NSU brings
"NSU

institutional

personal

alumni

perspective

thorough historic

knowledge,

on NSU's

mission that

is highly

Deloatch Aff.

1 25.

valued by University Administration."
sworn

affidavit

submitted

by

Defendants'

contacts,

expert

and

repeats

a

A
such

point, and further opines, under oath, that such elevated pay is
"not

uncommon

full-time

when

former

faculty

academic

position"

and

practice in higher education."
supporting
provision

such
in

sworn

the

NSU

administrators

is

"a

generally

Schexnider Aff.

statements,
"Teaching

Defendants

Faculty

return

a

accepted

H 30.

Further

point

Handbook"

to

to

a

expressly

addressing "salary conversion" when former administrators rejoin
the

NSU

teaching

faculty.

provision acknowledges that,
level of

based

a

ECF

the

75-10,

at

92-93.

in "special instances,"

former administrator

upon

No.

academic

"will be

18

the salary

set by the

administrator's

Such

President

experience,

qualifications,
factors."

service

to

the University,

other relevant

Id_;_ at 93.

Further supporting the above evidence,
excerpt from Dr. Meshesha's deposition.
defense

and

counsel was

questioning Dr.

Defendants submit an

During such deposition,

Meshesha about

former male

administrators being paid higher salaries when they returned to
teaching

at

NSU

and

Plaintiffs'

counsel

made

the

following

stipulation:
PI. Counsel:
Let me interject something here.
We
will stipulate that there are many instances and on
this very campus where this has happened and will
probably continue to happen.
That doesn't mean it is
right or that we approve of it or that Dr. Meshesha
approves of it.

Def. counsel:

Well, thank you for your stipulation.

Def. counsel Question:
Are there many examples
which the
returning person was male as
well
examples where the returning person was female?
PI.

counsel:

Def. counsel:

PI. counsel:
Def. counsel:

Probably.
Well,

I need a yes or no.

I'm sorry,

I shouldn't be answering.

Is that your stipulation or is it not?

Pi. counsel:
Oh, yes.
occurred many times.
Def.

counsel:

Pi. counsel:
Def. counsel:

in
as

We

stipulate

With males?

Without regard to gender.
Okay,

Meshesha Depo. at 21-22,

Thank you.
ECF No.

75-3.
19

that

this

has

All of

current

the

above evidence,

high-ranking

Defendants'

engaged

expert,

in

such

uncontroverted
favor

of

there

are

at

and

official,

trial,
as

stipulation

without

would
to

material

sworn

Meshesha's

Dr.

practice

Defendants

no

NSU

including sworn testimony of

regard

support

their

factual

a

affirmative

disputes,

Meshesha's claim fails at
comes

forward

with

Strag,

the

some

that

NSU

if

verdict

defense

and

of

gender,

to

directed

circumstantial evidence of any kind in the

in any way such gender-neutral

testimony

a

no

in

because

direct

or

record undercutting

explanation.

Accordingly,

Dr.

summary judgment stage unless he

evidence

55 F.3d at 948.

A review of Plaintiffs'

judgment reveals that:
Defendants'
issue

statement

(such facts are

(1)

rebutting

Defendants'

submission in opposition to summary

Dr. Meshesha offers no challenge to

of

undisputed

facts

as

therefore accepted as

related

true);

Meshesha offers no evidence to rebut Defendants'
directly or
not

submit

fact

other

through justifiable inferences.
any

witnesses,

document

deposition
or

expert

calling

advanced by Defendants.4

4 After conducting
provides

full

case.

testimony,
witnesses,

into

Dr.

affidavits
nor

question

does

the

to

and

(2)

showing,

this
Dr.

either

Meshesha does
from
he

sworn

himself,

submit

any

statements

Rather, Plaintiffs' brief in opposition

discovery,

enhanced salaries

to male
20

and after stipulating that NSU
and

female

administrators

without

to

summary

judgment

submission of Dr.
While

Dr.

demonstrate

issue

relies

exclusively

on

the

Meshesha's resume.5

that

(1)

this

Meshesha

undisputed fact
because:

on

submits

he

is

not

material

is
as

a

a

resume

in

well-qualified

previously

to

the

stated,

an

effort

professor,

issue

before

Defendants'

to

such

the

Court

affirmative

defense does not rely in any way on a negative characterization
of

Dr.

Meshesha's

Meshesha's

resume

Vice-President,

qualifications

does

or

not

last

any professional
twenty

report

years,

activities
the

ECF No.

the unchallenged statements of
and

any

(2)

experience

a

as

Dr.
Dean,

the

(or

and (3) Dr. Meshesha's resume does not

with

document being 1996.

Defendants,

performance;

other high-ranking administrator at NSU

at any other university);
report

or

or

latest

85-11.
fact,

stipulation

accomplishments
date

appearing

Accordingly,
and evidence,

entered

from

into

on

the
such

in light of
presented by

by

Plaintiffs'

regard to sex, Plaintiffs have not endeavored to present any evidence
or argument suggesting that Dr. Barnes receives any more than the
"typical" increase in pay that is afforded to a former administrator.

5 As

highlighted

in Defendants'

reply brief,

such

resume

is

not

accompanied by an affidavit from Dr. Meshesha, nor does the resume
itself include a sworn attestation that the contents therein are true,
accurate, and complete.
However, because Defendants do not "object"

to such document as containing facts that could not be produced at
trial in admissible form,

the Court considers its contents.

Williams

v. Silver Spring Volunteer Fire Dep't, 86 F. Supp. 3d 398, 407 (D. Md.
2015);

Fed.

R.

Civ.

P.

56(c).

21

counsel,6

Dr.

Meshesha's

"satisfactorily rebut
at

948.

at

experience

two

trial

as

a

relied

Meshesha.

no

on

the

short

of

demonstrate

the

the

limited

level

defense

existence

of

juror could

Plaintiffs'

affirmative

Dr.

solely

accomplishments

Defendants'

facts,

evidence."

fails

Strag,

55

assuming that Plaintiffs'

reasonable

Because

significantly

resume

resume

of

in

in

rebuttal

question

or

disputes

the

in

last

of

Dr.

efforts

fall

either

call

to

genuine

no

and

favor

necessary

into

F.3d

indicating

any kind

find

to

rebuttal

high-ranking university administrator,

no professional

decades,

outdated

[Defendants']

Stated differently,

evidence

fact,

facially

to

as

otherwise

to

material

summary judgment is GRANTED in favor of Defendants as to

Meshesha's EPA claim.

E. Analysis - Sociology Department

Plaintiff

Dr.

Agyei

asserts

that

he

suffered

salary

discrimination under the Equal Pay Act and points to Dr. Holmes

as the female "comparator" within his department who was paid a
greater

salary.

Defendants

viable "comparator" because,
she

was

serving

as

the

assert

that

Dr.

Holmes

is

to

summary

a

in addition to her teaching duties,

Director

of

the

Masters

Program

6 A careful reading of both the stipulation and Plaintiffs'
opposition

not

judgment

suggest

Dr.

brief in

true
contention is not that he is being treated differently based on his
sex, but that it is unfair for any former administrator, of any sex,
to be paid a substantially elevated salary when acting solely as a
professor.
Whether such complaint is legitimate or not, it has no
place in the EPA analysis.
22

that

in

Meshesha's

Criminal Justice,

calendar year,

a position

that:

(1)

is paid on a 12-month

rather than the 9-month calendar year generally

applicable to NSU professors; and (2)

involves additional duties

and responsibilities different from those required of Dr. Agyei,
a

tenured

Sociology professor.

Separately,

Defendants

Dr. Holmes'

additional duties

that even if a proper comparator,
provide
After

a

gender-neutral

reviewing

the

justification

briefs

and

for

record,

her

the

assert

increased

Court

finds

pay.
that

summary judgment is not appropriate at this time as to either of
the arguments advanced by Defendants.
1.

Prima Facie Case

It is undisputed that Dr. Holmes was the Director of NSU's

Masters Program in Criminal Justice during much of
relevant to the instant litigation.
the Court,

it is clear that,

elevated

Based on the record before

during such timeframe,

duties,

which the record clearly establishes are additional job

At

render

first

Dr.

dissimilar
blush,

Holmes

an

improper

However,

a

reveals

at

at

manner

least

in which Dr.

the

for

more

Holmes'

stage

salary was

review

in

the

of

appear

as

argued

of

the

Dr.
to
by

record

proceedings,

the

calculated by NSU does

not exclude her as a comparator to Dr. Agyei.
23

Directorship

job duties

comparator

careful

this

her

responsibilities

such dissimilar

Defendants.

that,

to

her

Holmes'

was

Agyei.

compensate

Dr.

salary

responsibilities

to

the time

When viewed

NSU business
Holmes'

a

records

light most

favorable

submitted by

to

Defendants

Plaintiffs,

suggest

then increased by an

such premium being

that

Dr.

expressly

"administrative premium,"

tied

to

her

service

"Director of the Masters Program in Criminal Justice."
75-7,

the

total compensation was determined by paying her a base

salary that was

with

in

Moreover,

at 40.

as

the

ECF No.

such records indicate that if Dr. Holmes

stopped acting as Director, she would revert to her base salary.
Id.

Because Dr.

salary,

Holmes'

base salary is more

and because Defendants,

assert

that

Dr.

Holmes'

base

than Dr.

as the moving party,

duties

and

Agyei's

fail to

responsibilities

as

a

full professor in the Sociology department are not substantially
similar to Dr.
department,
sufficient

valid

Agyei's

the
for

F.3d

evidence
a

comparator

Masters Program.
328,

334

duties as a full professor in the same
viewed

factfinder

to

in

Plaintiffs'

conclude

notwithstanding

her

that

role

favor

Dr.

as

(4th

Cir.

2004)

(indicating

Holmes

Director

Cf. Wheatley v. Wicomico Cty.,
that

appears
is

of

the

Maryland,

390

a

plaintiff's

claim does not falter merely because such plaintiff "fail[s]
identify

one

specific

individual

[fe]male comparator"

because

brushed

a

with

Brewster,
work

issue

788
is

such

F.2d

the

who

"text

demanding

at

991

whether

the

("The
jobs
24

constitutes

of

the

gloss")

crucial
to

be

a

(emphasis

on

compared have

to

perfect

EPA may

finding

a

not

be

added);

the
a

equal

'common

core' of tasks, i.e., whether a significant portion of the two
jobs

is

identical.

differing

or

different.")

The

additional

inquiry
tasks

then

make

turns

the

to

whether

work

the

substantially

(quotation marks and citation omitted).

The Court acknowledges that Plaintiffs'

limited evidentiary

submission on summary judgment does not advance facts making a

specific

comparison

between

the

skills,

efforts,

and

responsibilities of Dr. Agyei's and Dr. Holmes' core set of job
functions.

three,

Defendants'

matter

into

provide
Rather,

However,

as previously discussed herein in footnote

summary judgment motion does

question

responsive
because

such

that

evidence

to

Defendants'

the

Director

record,

viewed

duties

are

in

evidence

the

and

Masters

which

elements of the plaintiff's case"

the

evidence

essential

in

element

Int'l Shortstop,

Cir.

1991)

the
of

Inc.

record
the
v.

program,

(citing Celotex,

do

or

25

focuses

the

current

such added
through

an

"affirmatively

of

the

essential

they "demonstrate that

short

Inc.,

477 U.S.

to

judgment.

that

not

more

plaintiff [s']

Rally's,

and

compensated

nor do

falls

obligated

motion

suggests

Defendants
one

this

added duties involved in

favor,

undermines

call

summary

judgment

separately

premium,"

was

survive

Holmes'

Plaintiffs'

fully

"administrative
offer

of

Agyei

summary

solely on distinguishing Dr.
being

Dr.

not

of

establishing

[prima

facie]

939 F.2d 1257,

317);

case."

1264

see 10A Fed.

an

(5th

Prac.

&

Proc.

Civ.

§

2727

(3d

ed.).

Defendants

effectively demonstrate that Dr.

Cf.

Lovell,

618, 620-21 (indicating that, in EPA cases:
turn

on

"titles,

rather on the actual
the

jobs

analysis
that

being
of

the

to

12-month

a

such as

distinction

work

effective

requirements,
(2)

between

comparison

do

(1)

or

Supp. 2d at

classifications,

the

tasks

in their jobs";

a

comparison

or

requires

"part-time"

9-month

but

and content of

work

and

categorically

the

plaintiff

and

preclude

and

(3)

(facially

calendar

not

between

to

the inquiry does

performance,

"full-time"

calendar)

295 F.

that

"common core of

distinctions

similar

descriptions,

compared;"

fail

Holmes cannot be utilized as a

valid comparator to Dr. Agyei.

not

therefore

the

a

an

chosen

comparator) .
2.

Affirmative Defense

Similar to the prima facie analysis,
Plaintiffs'

time

to

favor,

the Court

demonstrate

a

finds

valid

viewing the record in

that Defendants

gender-neutral

fail at

basis

disparity in pay between Dr. Agyei and Dr. Holmes.
above,

Defendants'

solely

on

Dr.

justification

Holmes'

for

Directorship,

the
and

pay

disparity

while

viewed

in

Plaintiffs'

favor,

the

As indicated

such

clearly involves a valid factor other than gender,
evidence,

for

this

rests

defense

the record

supports

an

interpretation that the "administrative premium" associated with

the

directorship

explains

only a
26

portion of

the

total

pay

disparity.

on

this

Therefore,

record,

Defendants'

is

viewed

affirmative

rebutted
"rate"

not

sufficient

record

pay

affirmative defense,

support

Alternatively,

defense,

by

of

would

favor.

as

Defendants'

to

the

Court

Dr.

directed

verdict

even if Defendants'

establish

evidence

exceeds

a

at least

a

finds

valid

that

demonstrating

Agyei's

rate

of

in

evidence

gender-neutral

such

that
pay

defense

Dr.
by

an

is

Holmes'
amount

greater than that which can be attributed to her directorship.7
Accordingly, Defendants'

summary judgment motion is DENIED as to

Dr. Agyei's claim.

7 In addition

to

the

evidence

discussed

above,

the

Court

notes

that

record evidence, submitted primarily by Defendants, provides further
support for Dr. Agyei's claim that there was a salary differential
between

himself

and

Dr.

Holmes

that

is

not

attributable

to

her

directorship.
First, the record appears to indicate that Dr. Holmes
was initially hired in 2002 to perform a typical 9-month schedule as a
"tenure track" NSU professor at an annual salary of $67,000.
ECF No.
75-7.
According to Defendants' expert, Dr. Agyei was paid less
($60,000) during the subsequent academic year even though he was the
Sociology Department Chair at that time and his salary included a

$10,000 premium for acting as Chair.

Schexnider Aff. H 32.

Second,

the record appears to indicate that during the 2012-2013 academic
year, Dr. Agyei, would have been entitled to a salary of approximately
$66,000, Schexnider Aff. % 32, which is still less than Dr. Holmes'
salary at the time of her hire ten years earlier, and far less than
her "base" salary at that time.
Finally, Plaintiffs' unredacted
salary chart, ECF No. 93-1, considered in conjunction with deposition
testimony submitted by Defendants, appears to demonstrate that Dr.
Holmes ceased acting as the Director of the Masters program in 2015,
and although her salary was reduced, she continued to receive a salary
more than $15,000 greater than Dr. Agyei.
These
Plaintiffs'
favor,
further
support
Dr.
Agyei's

facts, viewed in
contention
that,

irrespective of her Directorship, Dr. Holmes, a female full professor
in the Sociology department, was being paid more than Dr. Agyei, a
male full professor in the same department.
While Defendants may have
a valid gender-neutral explanation for such disparity, it has not been
presented to this Court on summary judgment.
27

F. Analysis - Mathematics Department: Drs. Earl & Coan

Plaintiffs
suffered
Earl

Dr.

Earl

and

Dr.

salary discrimination

points

to Drs.

Coan

under

the

Cotwright-Williams,

Barber and Verma as

comparators.

Dr.

Lanz and Verma as his comparators.

both

assert

Equal

that

they
Dr.

Fernando,

Ellis,

Pay Act.

Lanz,

Coan points only to Drs.

Defendants'

summary judgment

motion does not seriously question whether the named comparators
are performing work
responsibility

and Coan.8
its

"substantially equal

under

similar

working

Strag, 55 F.3d at 948.

analysis

with

Defendants'

defense asserting that
disparities

at

The

Defendants

argument

is

assertions

intended

to

conditions"

of

notes

multi-faceted,

highlight

as

an

"other than sex"
Court

effort,
Drs.

and
Earl

This Court therefore begins

presentation

factors

issue.

in skill,

the

female comparators and intended to call

at

and

affirmative

caused the pay

the

outset

includes

qualifications

that

factual

of

the

into question Dr. Earl

and Dr. Coan's qualifications and/or performance in an effort to

characterize their diminished "value" to NSU.

Although a very

8 Defendants suggest in a footnote that Dr. Earl's purported "skill
gaps," to include his failure to have a terminal degree in his field,
justify rejecting a salary comparison with the comparators he has

identified.

Defendants, however,

fail to cite any legal authority

supporting the claim that job performance,
preferred but unnecessary credential,

or failure to possess a

is appropriately considered at

the prima facie stage, and such assertion appears in conflict with 29
C.F.R. § 1620.15(a). Moreover, the evidence before the Court suggests
that, consistent with Dr. Verma and Dr. Coan (who both possessed
PhDs) , Dr. Earl's course load at NSU was teaching "100 and 200 level
classes."

ECF No.

93.
28

close

call,

viewing

the

evidence

in a

light most

favorable

to

Plaintiffs as required at this stage in the proceedings,

because

Defendants

have

but

of

persuasion,

the

failed

to

the

burden

Court

not

finds

just

that

of

production

Defendants

have

demonstrate a valid affirmative defense warranting the entry of
summary judgment.
1.

Defendants'

Defendants

advance

summary judgment:

(1)

education

than

rather

Evidence as to Dr.

the

Dr.

following

a

university

a

PhD

seeking

Schexnider Aff. H 35;
of

higher

learning

evidence

in

in

to

Math;

(2)

"the

consequently,

academic

expand

its

and

Ed.D

is

not

research

capacity"

(3) "PhD faculty add value to institutions
and

enable

highly desirable

profile

of

is less valuable

them

to

attract

students who share similar interests and goals,"
faculty are

support

Earl has an EdD degree in Mathematics

typically a research degree and,
to

Earl

mural funding," id. ; (5)

id.;

in strengthening an

enhancing

its

ability

to

faculty

(4)

and

"PhD

institution's

attract

extra

Dr. Earl was hired by NSU in 1991 at a

time when salaries were much lower,

and Dr.

Earl's salary has

risen modestly in part because "he lacks a PhD,"

id. U 16;

(6)

while Dr. Earl is an established professor at NSU with years of
teaching experience,

he has failed to become a

"Full Professor"

based not only on his lack of a terminal degree in Mathematics
but

based on his

ongoing

failure
29

to

meet

the

NSU

standard of

"exceptional"
Aff.

UU

in

17-18;

either

and

professor with a

Dr.

Earl

(7)

PhD

earned

(approximately

teaching
Dr.

Coan,

or
a

in

scholarship,

non-tenured male associate

in Math and performing

slightly

$1,500

more

more

Deloatch

similar duties

annually

according

to

than

Dr.

Plaintiffs'

to

Earl

salary

chart).
2.

Defendants'

Defendants
summary

advance

judgment:

(1)

Evidence as to Dr.

the
Dr.

following

Cohn

is

an

holds a PhD in Math yet he elected to
tenure track at NSU,

Coan

evidence

in

associate

support

professor

remove himself

of
who

from the

thereby limiting his opportunity to advance

in academic rank and salary, Schexnider Aff.

K 21;

was hired as an associate professor in 1999,

which was prior to

the

hire

himself

date

and

of

the

the

market

female

professors

conditions

were

to

(2) Dr. Cohn

whom

different

he
at

compares
that

time

and were "less favorable to the faculty member," Deloatch Aff. ^|
19;

(3) Dr. Coan does not participate in the Virginia Retirement

System, and if he did,

he would have been entitled to a one-time

salary increase of 5%, id. H 20;9 (4) Dr. Verma, one of only two
comparators
at

the

9 The

identified by Dr.

time

record,

she

was

however,

hired

Coan,
because

appears

received a salary increase
she

unclear

as

brought

to

which

participate in the Virginia Retirement System program.

30

two

research

comparators

grants with her,
poor

teaching

salary,
Coan

id.;

evaluations

and

earned

comparators

Schexnider Aff.

(6)

more

which

(5)

"may

Dr.

have"

according to Plaintiffs'
than

relied

U 21 ;10

three

on by Dr.

of

Earl,

the

Coan received
influenced

his

own evidence,

six

Math

although he

Dr.

Department

did earn

less

than the two comparators on which he relies.11
3.

Defendants'

Defendants

Evidence as to both Drs.

advance

the

following

Earl and Coan

evidence

in

support

of

summary judgment relevant to the claims of both Dr. Earl and Dr.
Coan:

(1)

"For 15 years,

compete in

[a]

NSU has been repositioning itself to

rapidly changing space"

and

"faculty with the

right credentials comes at a premium" and are "in high demand

and

command

competitive

"recruiting initiatives,
more

intense

as

the

compensation,"

id.

U 41;

in the more recent years,

competition

for

excellent

comparable and nearby universities heightens"

(2)

NSU's

have become
faculty

with

and "[t]his has

meant higher starting wages for faculty since, at least, 2002,"
Deloatch

10

Aff.

Defendant's

fl

5;

expert

(3)

When

asserts

considering

that

Dr.

the

salary of

Verma's

salary

a

new

increase

associated with
the
grants
was
$2,000;
however,
some
documentation provided by Defendants leaves a less than clear
regarding Dr. Verma's salary increase as it appears that
initially offered $47,000, was then offered $49,000, and then
accepted the third offer of $53,000.
ECF Nos. 75-7, at 12-17.

11 Neither Dr. Coan nor Defendants endeavor to explain how Dr.

of
the
picture
she was
finally

Coan's

job
differs
from
Dr.
Earl
or
from
Dr.
Earl's
comparator—Drs.
Cotwright-Williams,
Ellis, Fernando, or Barber.
The salary chart
submitted by Plaintiffs indicates that Dr. Coan earns more than Drs.
Cotwright-Williams, Fernando, and Barber.
ECF No. 93-1.
31

teaching

faculty hire,

Business

Needs,

Performance,
Skill,

(d)

NSU

(b)

considers

Duties

and

Salary at

the

(i)

time

NSU)," id.

fl

of

(h)

Hiring,

and (m)

6;

NSU's

(c)

Education,
(f)

Internal

(e)

Knowledge,

Training,

(4)

(k)

Total

(g)

(the NSU Department)

Market Availability (at hiring),

outside of salary) , (1)

salary change)

following

Competencies,

Certification and Licensure,
Salary Alignment,

"(a)

Responsibilities,

and

Work Experience and

Abilities

the

(j)

Compensation

Budget Implications

Prior

(factors

(at time of hire or

Long Term Impact (upon Department or upon

salary disparity may occur when internal

salaries for State entities do not keep up with salary inflation

in the private sector" and "from 2007 until 2014, no raises were

appropriated by the State for internal faculty employees," id. 1
30; and (5) NSU is "not alone in dealing with concerns regarding

[the]

faculty salary compression and inversion" that occurs when

newly

hired

approaches

less-experienced

or

exceeds

the

professors

salary of more

earn

a

salary

that

experienced faculty,

Schexnider Aff. UK 6-7.
In
hiring

addition
documents

comparators,
further

example,

to

and

support

as

demonstrate

to
that

the

above,

associated
at
for

Dr.
Dr.

least

Defendants
with

some

of

Defendants'

Verma,

the
these

internal
Department

documents

provide

defense.

documentation

starting
32

Math

affirmative

such

Verma's

provide

salary

appears
at

NSU

For

to
was

determined

fact
the

after

negotiations

that, at the
$47,000

at

salary

NSU

Handbook

provides

merit

initially

Defendants

offered,

for

the

pay

also

cite

unchallenged

increases

reference

"to

and

that

programs.

the

to

the

NSU

proposition
reward

she

had

ECF Nos.
Teaching

that

and

NSU

encourage

outstanding professional achievement and productivity."
75-10,

to

she was earning more than

pursuing certain grant

12-17.

Faculty

included

time of her hire,

secured and/or was
75-7,

that

ECF No.

at 37.

4. Plaintiffs'

In

response

Plaintiffs

begin

indicating

that

to

Response

Defendants'

by

making

Defendants'

disputed and misleading.
Rubber Co., 279 F.2d 409,

summary

ineffective

proposed

judgment
blanket

facts

are

motion,

assertions

unsupported,

Cf. Minnesota Min. & Mfg. Co. v. U. S.
415

(4th Cir.

1960)

(" [M] ere denials

unaccompanied by facts which would be admissible in evidence at
a hearing are not sufficient to raise a genuine issue of fact.")
(citations omitted).

Plaintiffs do,

however,

some more targeted attacks on Defendants'

respect to the Math Department.12

thereafter advance

facts,

at least with

As argued in Defendants' reply

12 As an example of one of Plaintiffs' effective direct challenges, the
Court agrees with Plaintiffs that Defendants' evidentiary submissions
do not appear to support the blanket assertion that each and every one
of the female hires in the Mathematics department that have been
identified as comparators was
"an active researcher,
with prior
teaching experience," ECF No. 76 % 17, although the record surely
33

brief, Plaintiffs largely fail to comply with Local Rule 56(B),
and based on such failure,
accept as

true the majority of Defendants'

That said,

is

this Court is permitted to, and does,

while Plaintiffs'

sufficiently

clear

factual contentions.

filing could be much more clear,

from

Plaintiffs'

opposition

brief

it

that

both Dr. Earl and Dr. Coan dispute the facts seeking to bolster

the qualifications of

the

female

comparators

as well

as

those

facts seeking to undercut the qualifications/accomplishments of
Drs.

Earl and Coan.

Such facts are not accepted by the Court as

"undisputed."

While
of

Drs.

other

not

factual

Earl

named

submit

and

disputes
Coan

and

exist

regarding

their

comparators,

Plaintiffs

in

this

case,

deposition

testimony,

Dr.

sworn

the qualifications

Earl

similar
and Dr.

affidavits,

an

to

the

Coan do

expert

report or affidavit, or any other evidence seeking to call into
question Defendants'
Plaintiffs do,

very

facts
NSU

however,

detailed)

achievements

on

submit updated

resumes

in an effort

this

hiring

salary compression/market forces argument.

issue.

documents

(and in Dr.

documenting
to

their

counter Defendants'

Additionally,
associated

Drs.

with

Earl's case,

professional
version of

the

Earl and Coan submit

four

female

comparators

hired in the NSU Math department between 2009 and 2011.

ECF No.

demonstrates
that
some
of
the
comparators
had
experience and/or a documented record of research.

teaching

34

prior

85-1

to

85-4."

According

demonstrate that:

(1)

to

each of

replaced a male professor;

Plaintiffs,

such

these comparators was

(2)

three of

the

documents
female and

female professors

were selected for hire over a qualified male applicant and were
chosen based on a subjective factor; and (3) each selection form
includes

the

"same

curious

that was hired will
ECF No.

85,

comment"

that

the

"serve as a role model

female

professor

for our students."14

at 5.

5. Analysis

Considering all of the above,
evidence

renders

the

issue

a

close

although Plaintiffs'
call,

entry of summary judgment in Defendants'

the

Court

limited

finds

that

favor would improperly

take the following material issues from the factfinder:

(1)

the

purported "value" that the more recently hired female professors
brought to NSU
13

Plaintiffs'

(both at the time of their initial hire and in

exhibits

indicate

that

Dr.

Earl

was

one

of

the

NSU

faculty members that
interviewed each of
the
four comparators.
However, such fact is not material to the Court's ruling on summary
judgment as such documents do not reveal Dr. Earl's personal viewpoint
as to the qualifications of the applicant, let alone indicate his
viewpoint on the appropriate starting salary.
Moreover, some of the
documentation

in

the

record,

when

viewed

in

Plaintiffs'

favor,

suggests that the salary recommended by the interview panel was
than the starting salary ultimately negotiated by NSU.

14 In addition to the above,

the Court notes that the record contains

materials submitted by Defendants documenting Dr.

Earl's unsuccessful

attempt in 2006 and 2014 to become a full professor.

the
Earl

latter
as

attempt

is

an NSU document

less

subject

to

an

before

the

interpretation

Court

indicates

It appears that

that

that

Dr.

favors

Dr.

Earl

"was

approved for promotion to the rank of professor by the Mathematics
Department Evaluation Committee," but that he was not recommended for
promotion by the acting dean.
ECF No. 75-6, at 39, 42.
35

the years to follow)
and Dr.

to

Cohn,

which

such issue including consideration of

"tenure"

Department

at

as contrasted with the "value" of Dr.

NSU;

or

PhD

and

status

(2)

the

impacts

extent

to

salary

Earl

the extent

in

the

which market

Math

factors

impacted the salary for Mathematics department hires after 2002.
a. Value of Professor,

including Degree, Tenure

There are material factual disputes as

Coan's purported "value"

regarding

their

to NSU,

performance,

to Dr.

Earl and Dr.

which includes disputed facts

publications,

etc.

Similarly,

there are disputed facts as to the "value" brought by the newly

hired female professors,
and/or

to include their research experience

teaching experience.

While

it is undisputed that Dr.

Earl only possessed an EdD and the comparators all possessed a
PhD in their terminal field,

and it is further undisputed that

NSU justifiably places a greater value on a PhD, Defendants fail
to effectively monetize such "value," either through direct or
circumstantial evidence.

Therefore,

it

is unclear what portion

of the salary disparity between Dr. Earl and his comparators is
due

to such fact.

Similarly, while Dr. Coan formally removed himself from the
tenure
2015,
earned

track,
yet

in

his
the

several

Additionally,

comparator
years

Dr.

before

thousand

Lanz

she

dollars

was

achieved
more

not

tenured

tenure,
than

she
Dr.

until
still
Coan.

while there is no record evidence suggesting that
36

Dr.

Verma "removed herself" from the tenure track,

she was hired

in 2002 and has still not achieved tenure, yet she continues to
earn

several

Moreover,

salary

thousand

while

increase"

Deloatch Aff.

been a

dollars

Defendants

at

H 28,

NSU

more

highlight

when

annually
that

addressing

Dr.

"tenure

Dr.

the

Coan's

entire

at least at the time suit was filed,

comparators were not tenured,

Coan.

carries

it cannot be overlooked that Dr.

tenured associate professor during

period and,

than

a

claim,

Earl

has

relevant

all of his

and several of his comparators

were only at the level of "assistant professor," a level below

"associate professor."

ECF No.

75-10, at 29-30.

Accordingly,

while the Court can and does conclude that it is undisputed that

both tenure and possessing a terminal degree are gender-neutral

factors that support an increase in salary, the record developed

by Defendants lacks sufficient facts that would permit the Court
to conclude that Defendants carried their burden of persuasion

to

demonstrate

that

the

entire

pay

disparity

at

issue

is

explained by such factors.15

15 This Court's analysis is not meant to suggest that the issue of
"tenure"

or

"PhD"

status

is being

inconsistently or

inappropriately

applied at NSU or inappropriately argued by NSU on summary judgement.
Rather, the Court's point is that when the record is viewed at this
stage in Plaintiffs favor, a fact-finder could compare Drs. Earl and
Cohn to the relevant comparators, adjust for their PhD or tenure
differences, and still reasonably conclude that NSU has only explained
away a portion of the salary differential at issue.
37

In

addition

to

the

above,

a

review

of

the

salary

chart

submitted by Plaintiffs and relied on by Dr. Earl and Dr. Coan
in support of their summary judgment opposition reveals that Dr.
Verma,

a

received

female
a

substantial

Earl and Dr.

be

Dr.

Coan

both

in

2011

while

the

Dr.

salaries

Coan,
of

Dr.

While there very well may

articulated

by

As previously indicated in a footnote herein,

and

it

such

Plaintiffs'

Dr.

Verma

explanation

evidence

are

such

all

indicates

teaching

classes" within the Mathematics Department.

As a final point,
evidence

and

is

no

for

Earl

(such as

that

basis

Dr.

raise

performance),

notable

raise

gender-neutral

Defendants.16
is

to

Coan remained the same.

a valid

Verma's

comparator

"100

Dr.

that

Dr.

Earl,

and

200

level

ECF No.

93.

Plaintiffs have presented at least some

demonstrating

that

subjective

factors

may

have

influenced NSU's recent hiring decisions and/or salaries chosen
for the more recently hired female comparators.
on subjective factors is surely permissible,
to

the

possibility

credentials

of

Dr.

16 Needless to say,
could

have

been

that,
Earl

when
and/or

resolving
Dr.

Coan,

it opens the door
disputes
as

it does not appear that Dr.

based

on

her

PhD

or

"market

While relying

about

contrasted

the
with

Verma's 2011 raise

conditions"

as

Dr.

Verma

had been working at NSU for almost ten years at the time she received
such raise.
Cf.
King,
678
F.3d at 474
(indicating that while
"education and experience" could surely explain "some or even all of
the difference in the starting salaries" of the relevant employee,
"[t]here is no reason why they should explain increases in pay while a
person is employed").
38

disputes

regarding

some

female comparators,
role

in

the

of

(W.D.

"subjective"

Va.

less

experienced

newly

hired

a juror could conclude that gender played a
salary determination.

Virginia Polytechnic Inst.
301

the

2011)

& State Univ.,

(explaining

that

See Kennedy v.

781 F. Supp.

" [f] inders

of

2d 297,
fact

may

consider evidence of the competing experience and qualifications
of the male comparators and the plaintiff,

their relative salary

histories, and the employer's research to determine plaintiff's

salary," and concluding that, based on the record in that case,
which

included

evidence

indicating

that

"some

degree

subjectivity informed the salary determinations,"
juror

could

decision)

infer

that

gender

a

role

a reasonable

in

the

salary

(citing Brinkley, 180 F.3d at 614-15).
b.

As

played

of

to

market

factors

Market

Forces

creating

salary

compression,

Defendants have advanced sufficient undisputed facts to

while
support

the finding that market factors played a part in the increased
salaries

offered

to

the

comparators

as

new

hires,

again do not effectively quantify the impact of
Moreover,

while

disputed

through

the

Defendants'

the presentation of

assessing whether Defendants

the

Court

notes

evidence

that

carry

Defendants'

on

such phenomena.

this

issue

conflicting

not

in

persuasion,

regarding

compression is painted with extremely broad strokes,
39

is

evidence,

their burden of

evidence

Defendants

salary

and is not

tied to Mathematics Professors,

Hampton
there

Roads,

are

Virginia

multiple

likewise multiple

more

glaringly,

market

"prior

unbounded

(other

colleges

colleges

the
to

the

tied to Virginia,

the
area,

presented
the

although

to

to

"after

compare

that

there

were

2002) .

broadly

market

purports

or to

acknowledgement

in the area prior

to

that

than

in

analysis

2002"

comparison

is not

Even

compares
2002."

a

the
Such

period

of

at

least a decade prior to 2002 with a period of at least a decade
after 2002 with no specific explanation whatsoever as to why,

how,

conditions

persuasive

at

best.

l:13-CV-00002-DMB,

2014)

changed

in

Cf.

2014

2002,

Wu

v.

appears

to

Mississippi

WL 5799972,

at

*25

be

State

(N.D.

or

minimally

Univ.,

Miss.

No.

Nov.

7,

(denying summary judgment on a professor's Title VII wage

discrimination

claim

in

a

case

where

the

defendant

relied

in

part on a university affidavit asserting that salaries for newly
hired employees were higher based on "rates that are driven by
outside market forces," noting that the "defendant does not even

attempt
the

to

define

starting

while

salaries"

undisputed

"market

disparity

factors,"

in

sufficiently

the

market
at

issue

evidence

detailed

at

in

before

accounted

salary

forces

for

evidence

impact of such forces.
40

that
the

at

issue,

that

allegedly
case).

Court

least

Defendants
to

influenced

Accordingly,
indicates

a

portion

fail

demonstrate

the

to

of

that

the

present

degree

of

In

sum,

neutral

while

Defendants

explanations

differentials

within

have

presented

seeking

to

the

Mathematics

which are unchallenged,

NSU

justify

gender

relevant

the

several

salary

department,

some

of

the Court cannot on this record conclude

that Defendants have carried their burden of persuasion to prove

that

the

unchallenged

salary difference.
credentials,

facts

not

Court.

however
could

exist

in

research

that must

for

the

etc.,

resolved by

the

"[b]ecause

it might

Plaintiffs'

proclivity,

be

Accordingly

large or small
find

accounted

entire

As for the challenged explanations regarding

experience,

material

the

explanations

be,

favor

there

disputed

factfinder,

is

a

chance,

that a reasonabl[e]

on

the

EPA

claim,

jury

summary

judgment is improper" as to the claims advanced by Dr. Earl and
Dr.

Coan.

Kennedy,

G.

781 F. Supp. 2d at 301-02.

Blanket Exemption - Productivity System

Defendants alternatively argue that NSU has a "productivity
system"

for evaluating professors that should warrant a blanket

exemption from the Equal Pay Act.

While it is undisputed that

NSU has several tiers of professors (e.g., assistant,

associate,

full) , as

system of

evaluation

that considers both teaching skills and scholarship,

Defendants

fail

NSU's

to

well

advance

asserted

as

a

tenure

facts,

or case

"productivity

exempt from the EPA.

system and

law,

system"

a

supporting a

renders

finding

Defendants

that

wholly

While case law cited by Defendants clearly
41

supports

the

necessarily
which

[the

Jiminez
1995)

v.

proposition

involve
Fourth

Mary

(internal

that

subjective
Circuit

Washington
quotation

"professorial

and

has]

scholarly

been

Coll.,
marks

judgments,

reluctant

57

F.3d

and

369,

citation

appointments

to

376

with

interfere,"

(4th

omitted),

Cir.
such

well-deserved caution is applied in the context of analyzing an
employment discrimination claim,

claim at the outset.

and does

Accordingly,

not

foreclose such a

summary judgment on this

basis is denied.
IV.

CONCLUSION

For the foregoing reasons,
judgment is GRANTED

in part,

parties

to

may

choose

Defendants'

motion for summary

and DENIED in part.

resume

settlement

While the

discussions

with

a

Magistrate Judge in the wake of this opinion in the limited time
remaining before trial, if a final settlement is not reached in

the interim, trial will commence as scheduled on Tuesday, March
22, at 10 a.m. as to the Equal Pay Act claims advanced by Dr.
Earl, Dr. Coan and Dr. Agyei.

Summary judgment is GRANTED in

favor of Defendants as to the claims advanced by the remaining
four

Plaintiffs.

If

the

parties

wish

to

resume

settlement

discussions with Magistrate Judge Krask, they should contact the
Magistrate Judge Courtroom Deputies at 757-222-7222.

42

The
Order

Clerk is DIRECTED

to all counsel of
IT

IS

SO

to

send a

copy of

this

Opinion and

record.

ORDERED.

wfr

/s/
Mark S.

Davis

United States District Judge

March \1

, 2016

Norfolk, Virginia

43