Spencer v. Virginia State University et al

Filing 30

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 4/4/2017. (sbea, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

ZOE SPENCER,
Plaintiff,
Civil Action No. 3:16-cv-989-HEH

V.

VIRGINIA STATE UNIVERSITY

and DR. KEITH T. MILLER,
Defendants.

MEMORANDUM OPINION

(Denying Defendants' Motion to Dismiss)

PlaintiffZoe Spencer ("Plaintiff) brings suit against her employer, Virginia State

University ("VSU" or "the University"), and Dr. Keith T. Miller, VSU's former President
(collectively "Defendants"), alleging willful wage discrimination and retaliation under
the Equal Pay Act of 1963 ("EPA"), 29 U.S.C. § 206(d), et seq.
This matter comes before the Court on Defendants' Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). (ECF No. 24.) Defendants seek dismissal of

Plaintiffs entire Complaint, arguing thatshe has failed to plead a plausible claim under
the EPA.

Each side has filed memoranda supporting their respective positions. The Court

will dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before the Court, and oral argument would not aid in the
decisional process. E.D. Va. Loc. Civ. R. 7(J).
For the reasons set forth below, the Court will deny Defendants' Motion.

I. BACKGROUND

As required by Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court

assumes Plaintiffs well-pleaded allegations to be true and views all facts in the light
most favorable to her. T.G. Slater & Son v. Donald P. & Patricia A. Brennan LLC, 385

F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 1 F.3d 1130, 1134 (4th

Cir. 1993)). At this stage, the Court's analysis is both informed and constrained by the

four corners ofPlaintiffs First Amended Complaint ("F.A.C.").' Viewed through this
lens, the facts are as follows.

Plaintiffearned her Master's degree in Social Work in 1992 and received her

Ph.D. in Sociology in 2005, both from Howard University. (F.A.C. ^ 36, ECF No. 19-1.)

Since August 2008, Plaintiff has been employed atVSU. (Id. H37.) VSU initially hired
her as an Assistant Professor in the Department of Sociology, Social Work, and Criminal

Justice, and promoted her in 2010 to the rank of Associate Professor, a position she
currently holds. (Id.) Plaintiff is presently a member of both the Undergraduate and
Graduate faculty and is qualified to teach at the graduate level, mentor, and sit on and
advise thesis and dissertation committees both within the University and as an external
reviewer/advisor for other institutions. (Id. f 39.)
' Plaintiff filed her initial Complaint on May 22,2015, inthe Circuit Court of the City of Richmond.
While in state court, she amended her Complaint on April 7, 2016. Soon afterreceiving service,
Defendants removed the case to this Court on June 2,2016. See Spencer v. VirginiaState University, et

al. Civil No. 3:16-cv-331 (ECF No. 1). After being served with a Motion to Dismiss Pursuant to Federal
Rule of Civil Procedure 12(b)(6), Plaintiff sought leave to file a Second Amended Complaint, which the
Court granted. Id. (ECF No. 18). The Second Amended Complaint was filed onJuly 7,2016. Id. (ECF
No. 19). The Court eventually granted a subsequent Motion to Dismiss, and dismissed thecase without
prejudice. See id. (ECF No. 46). Plaintiff then filed a new Complaint on December 19, 2016. Spencer v.
Virginia State University, et al.. Civil No. 3:16-cv-989 (ECF No. 1). Nearly two months later, after being
served with another Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court

granted Plaintiff leave to file herFirst Amended Complaint in this case. Id. (ECF No 26).

VSU utilizes a standard Employee Work Profile ("EWP"), which establishes a
common core of responsibilities for all faculty members. {Id. ^ 14.) As part of this
common core of tasks, faculty members must: "prepare syllabi which reflect course

objectives; prepare lessons, activities, and lectures that serve to impart knowledge to
students; instructtheir students through the use of varying pedagogical methods, such as

lectures, technology, practical classroom experiences, group discussion, and media; keep
track of whether students are retaining knowledge and meeting the objectives and

outcomes of the course through exams, projects, presentations, practical experiences,

writing assignments, group work, service, and other activities; manage classroom

dynamics; assist students with course material; advise majors; maintain office hours;
provide feedback on assignments; input... midterm and final grades; and attend
contractually-mandated functions." {Id. 126.)

In order to fulfill their teaching responsibilities, faculty members are required to:

"study and prepare for class presentations and lectures; present their subject in an
interesting and challenging manner; engage in class discussions; prepare tests and exams
that fairly cover the subject taught; promptly grade tests and exams; and maintain regular
office hours for student consultation and assistance." {Id. 128.) Plaintiff contends that

these skills are required of all faculty members, regardless of academic department,
discipline, or sex. {Id.

31-32.)

Within this context, it appears that Plaintiff has had a noteworthy career while at

VSU. She "has consistently achieved ranks of 'outstanding' in the areas of teaching and
service, and ranks of'outstanding' and 'noteworthy' in scholarship." {Id. H37; see also

id. H47 (outlining Plaintiffs research, scholarship, and service efforts); F.A.C. Ex. C,
ECF No. 19-4 (Plaintiffs CV).) Plaintiff "has also received [ranks of] 'outstanding' in

all categories in Faculty evaluations." (F.A.C. 137.) Moreover, she has earned this

reputation all while teaching a full course load of at least five classes each semester, with
each consistently filled close to or at capacity. {See id. fl 40-44.)

Having this reputation amongst her colleagues and within the scope of serving as

the Faculty Senate Chair, Plaintiff approached then-VSU President Dr. Keith T. Miller in

early 2012 to discuss gender equity at the University. {Id. H83.) Dr. Miller gave Plaintiff
permission to research the issue. {Id.) As a result, Plaintiff chaired a six-member

organization called "The Gender Equity Task Force" (the "Task Force") and presented its
findings tothe full Administrative Cabinet inthe Spring 2012 semester. {Id.) At the

presentation, Plaintiffwarned the VSU Administration about the University's potential
liability under the EPA, suggested hiring a Vice President orOmbudsman for Equity, and
made further recommendations for addressing disparate pay. {Id.) Later, in September

2012, Plaintiff spoke with Board of Visitors member Terone Green about the Task
Force's findings. {Id. H90.) The VSU Administration ultimately declined to follow the
Task Force's recommendations. {Id. ^ 85.)

After attending Plaintiffs Task Force presentation. Provost Weldon Hill referred
to her as a "trouble maker" to other colleagues. {Id.

89.) And soon after making these

comments, in May 2012, Provost Hill intentionally delayed signing Plaintiffs paperwork
for her Summer School pay, which resulted in a delay of receiving payment and caused

Plaintiffsignificant financial hardship. {Id. H91.) Later that year, in December 2012—

after Plaintiff spokewith Green—Provost Hill again "refusedto sign [Plaintiff s
timesheet] and instead lied to [her] about having already signed it in order for her to get

paid." {Id. T| 92.) Plaintiff eventually received herpaycheck three pay periods later, on

January 15, 2013. (Jd.) "This delay caused financial hardship and a 30-day credit
delinquency." {Id.) Plaintiff asserts that both payment delays were the result of Provost
Hill's retaliatory animus against her for making the Task Force presentation. {Id.)

In May 2013, Plaintiff gave one of her students a failing grade in her Sociological

Theory class. {Id. 97.) After the student complained about Plaintiffs failure to give an
"incomplete" or a passing grade that was undeserved, the Provosfs Office encouraged
her to file a formal discrimination complaint with the Office for Civil Rights. {Id.) The

University's EEOC Director and University Counsel refused to represent Plaintiff in the
matter. {Id. ^ 98.) This forced Plaintiff to gothrough a lengthy and intense investigatory

process, which required her to negotiate directly with the Office for Civil Rights without
any support from VSU. {Id.) Plaintiff contends that VSU's actions "served to undermine
herreputation and character and caused [her] a great deal of stress and duress"
throughout the two-month investigation. {Id.) Plaintiff concludes that this "targeting ...
was motivated by retaliatory animus against [her] for having" made the Task Force
presentation. {Id.)

^Plaintiff asserts that"[njeither Provost Hill nor theAssociate Provost in hisoffice informed [her] of the
student's complaint, or advised the student to follow the chain ofcommand for student complaints and/or

grade appeals, asiscustomary. They further did not advise the student or her mother that the student had
failed to file the appropriate notification and accommodation paperwork with the Students with
Disabilities Office, and thus did not follow VSU guidelines required for seeking an accommodation
request. Thus, the Administration knew that [Plaintiff] had no knowledge ofthe student's disabilities, or
any requested accommodations." {Id. ^ 98.)

Roughly two months later, on July 30, 2013, Plaintiff sent a lengthy message to
Provost Hill and several other members of the Administration complaining about the lack

of security of faculty members' tenure and promotion dossiers. (Id. ^ 93.) After a heated
exchange between Plaintiffand Provost Hill, Provost Hill said, "[B]ecause of the stage
that's been set over the last two years.... [i]n this environment of heightened tension and
with your own background ... you're as sensitive to the human condition as anyone....

A wise person taught me a long, long time ago, that, 'If you get dragged into a game you

do not wish to play, then play the end-game.'" {Id. ^ 96; id. Ex. A, at 22, ECF No. 19-2.)
Plaintiff took this statement to be a veiled threat that if she continued to voice concerns

about Provost Hill and the Administration, she could expect further reprisal. (F.A.C. 1

96.) In response to the "escalating patterns of retaliation," Plaintiff applied to teach
abroad in China for the Fall 2013 semester. {Id.

99.)

In November 2013, while teaching in China, Plaintiffdiscovered that Provost Hill

had denied her request to teach an overload course at Fort Lee, for which she received
additional compensation. {Id. ^ 100.) Aftercontesting the denial and confronting
Provost Hill, the course was eventually reinstated. {Id.) Several months later Provost

Hill told Plaintiffin a February 2014 email that "[i]t is nearly impossible to get people to

improve upon whatwe have by simply looking in the mirror... Instead we have to be
consumed with protecting ourselves or competing for different jobs because of the
pervasive personal attacks, animus, disdain, and hatred amongst us all...." {Id. H101
(emphasis removed, ellipses in original).) Plaintiffclaims that this is a clear reference to
her complaints about gender-based pay inequities at VSU and an admission that Provost

Hill harbored retaliatory animus against her. (Id.)

In April 2014, VSU created two new Associate Professor positions in the

Departments of Doctoral Studies and Mass Communication. {Id.

102, 103.) The VSU

Administration unilaterally filled these newly created vacancies with two former
Administration members, Michael Shackleford and Cortez Dial. {Id.) Shackleford and

Dial received these appointments despite the fact thatneither had a terminal degree in

their respective fields of instruction, neither had four years teaching experience atthe
University level at the rank of Assistant Professor orhigher, and neither had other

experience that would qualify them to perform at the Associate Professor level.^ {Id.\ see
also id. Till 52-57, 63, 67-74, 76 (describing Shackleford and Dial's qualifications and
experience).)

At the time of these new hires, Plaintiff was earning a salary of $70,400 per

academic year."* {Id. f 49.) Despite Shackleford and Dial's apparent lack ofrequisite
experience and qualifications to be Associate Professors, they received starting salaries of
$119,734 and $105,446 per academic year, respectively—more than any other female

faculty member at VSU with the same or higher rank.^ {Id.

102,103.)

And so, on July 25, 2014, Plaintiff sent an email to Dr. Miller and Provost Hill
^"Appointment asAssociate Professor at VSU requires: a terminal degree (e.g., Doctorate, M.F.A., etc.)
in the area of teaching specialty, or its recognized equivalent; four years of full-time college/University
teaching experience at the Assistant Professor rank or above, or itsequivalent;... evidence of an
established high quality of performance in teaching, research/creative activities, and service; and a record
should clearly indicate that he/she will be able to meet the University's standards for the award of tenure
within the allowed time period." {Id.

20.)

ThiswasPlaintiffs salary from 2013—2016. {Id.) From 2011—2013, Plaintiff earned $68,500 per
academic year. {Id.)

^While Shackleford is no longer teaching at VSU (F.A.C. Ex. B, at 14, ECF No. 19-3), Dial currently
earns $107,556 per academic year. (F.A.C. ^ 66.) In contrast, Plaintiff now receives anannual salary of
$71,441. {Id.^A9.)

requesting an increase in her salary "in order to equalize her pay to that of male

professors performing substantially equal work as her." {Id. T| 104.) While arguing that
her request was made based on her own qualifications, she reiterated the Task Force's

findings and recommendations by noting that her "male counterparts who have joinedthe
ranks of faculty with less experience in teaching and research in the disciplines to which

they have been assigned," which she contends constitutes further evidence of salary

disparities between male and female faculty members at VSU. {Id.) She sent a number
of follow-up emails to various members ofthe VSU Administration restating her interest
in a pay raise and asserting that denying her request would be a violation of the EPA
when viewed within the context of the Shackleford and Dial hires. {Id. fl 105-108.) On

September 12, 2014, Provost Hill denied Plaintiffs request for a salary adjustment,

despite the fact that her request was supported by her Department Chair, Dr. Joyce
Edwards. {Id. ^ 109.)

Undeterred, Plaintiff notified the VSU Board of Visitors of her request for a salary

adjustment on September 13, 2014, and again included information regarding her belief
that Shackleford andDial's pay rate reflected gender discrimination in violation of the

EPA. {Id. K110.) Ultimately, the VSU Board ofVisitors approves faculty^ salaries after
reviewing the President's recommendation. {Id. ^ 8.) This determination is based upon

rank and experience, not departmental affiliation or subject matter taught.^ {Id. f 10.)
^Any faculty member (Assistant Professor, Associate Professor, or Professor) is considered to be part of
the "General Faculty," a designation that is then subdivided into five categories: "restricted, probationary,
term, continuing, or tenure contracts." {Id. ^11.)

' When conducting an overall assessment of faculty performance inthescope of reaching a decision, the
Board of Visitors assigns the following weights to three criteria: (1) Teaching: 40-55%; (2) Research/

After review, the Board of Visitors also declined to approve Plaintiffs request. {Id. |
110.)

In response, Spencer filed a formal charge of discrimination and retaliation with

the Equal Employment Opportunity Commission ("EEOC") on April 13, 2015. (Ml
111.) And on May 22, 2015, Plaintiff filed her initial EPA Complaint against VSU, the ,
current iteration of which names Shackleford and Dial as comparators under the Act for

discrimination purposes. {Id. U112; see also supra note 1 (tracing the history of this
litigation).)

As a point of comparison between Plaintiff, Shackleford, and Dial, Plaintiff points
to the number of classes each has taught since 2014 as well as the total enrollment in

those courses. From Fall 2014 through Fall 2016,^ Plaintiff taught twenty-six courses—
one at the graduate level and the remaining twenty-five at the undergraduate level—^with

atotal enrollment of984 students. {Id. HH 40-44.) In contrast, during the same period,^
Dial taught fourteen courses—eleven at the graduate level and the remaining three at the

undergraduate level—^with a total enrollment of eighty-seven students. {Id. fl 59-62.)
And though Plaintiff only provides one semester of data for Shackleford, she asserts that
he taught two doctorate-level, dissertation courses during the Spring 2015 semester, with
a total enrollment of seven students. {Id. T| 74-75.)

Soon after filing her EEOC charge and her initial EPA Complaint, Plaintiff

requested information from VSU's EEO/Compliance Manager, Julia Walker, on May 27,
Scholarship: 25-40%; and (3) Service: 15-20%. {Id.

16.)

®
Plaintiff taught courses every semester during this time period.
^Dial taught courses every semester during thistime period, with the exception of Spring 2016.

2015, regarding an unrelated action. {Id. ^ 113.) Walker informed her that "she would
need to make all requests through her attorney, even though it was a matter unrelated to
her EPA lawsuit and EEOC charge." {Id.)

Over the course of the following months, Provost Hill informed new Presidents

and Administrators about her pending lawsuit, again referring to her as a "trouble
maker." {Id. H114.) In August 2015, Plaintiff submitted a threat assessment to

University Counsel, Ramona Taylor, regarding a troubled student who was stalking her.

{Id. K116.) The VSU Administration did not respond to Plaintiffs concerns, forcing
Plaintiffs Department Chair to teach the course in which the student was enrolled. {Id.)
And finally, in January 2016, the VSU Administration removed Plaintiff without

explanation from her role ofgiving a speech during Freshman Orientation which she had
given for the preceding three years. {Id.)
Plaintiff avers that these actions constitute further evidence that the VSU

Administration holds a retaliatory animus against her. {Id. H118.)
IL STANDARD OF REVIEW

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952

(4th Cir. 1992) (citation omitted). The Federal Rules of Civil Procedure "require[] only

'a short and plain statement of the claim showing that the pleader is entitled to relief,' in
order to 'give the defendant fair notice of what the ... claim is and the grounds upon
which it rests.'" BellAtl Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
10

Gibson, 355 U.S. 41, 47 (1957)). A complaint need not assert "detailed factual

allegations," but must contain "more than labels and conclusions" or a "formulaic
recitation of the elements of a cause of action." Id. at 555 (citations omitted). Thus, the

"[f]actual allegations must be enough to raise a right to reliefabove the speculative level"
to one that is "plausible on its face," rather than merely "conceivable." Id. at 555, 510

(citation omitted). In considering such a motion, a plaintiffs well-pleaded allegations are
taken as true and the complaint is viewed in the light most favorable to the plaintiff. T. G.
Slater, 385 F.3d at 841 (citation omitted). Legal conclusions enjoy no such deference.
Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009).
III. DISCUSSION

Defendants move to dismiss Plaintiffs wage discrimination claims under the EPA

(Count I), asserting that Plaintiff has not identified proper comparators as required by the
statute. Furthermore, Defendants move to dismiss Plaintiffs retaliation claims underthe

EPA (Count II), alleging that Plaintiff suffered no materially adverse employment action

as a result ofretaliatory animus.'® The Court will address each argument in turn.
i. Wage Discrimination under the EPA

In Count I of her F.A.C., Plaintiff alleges that Defendants unlawfully and willfully
The Court observesthat Defendants do not explicitly challenge Plaintiffs claim that Defendants'

violations were knowing and willful (Count III). The statute of limitations for a claim alleging a violation
of the EPA is two years. 29 U.S.C. § 255(a). However, when an employee brings a cause of action
arising from an employer's "willful violation" of the EPA—^which Plaintiff has done in Count III—the
statute of limitations period is three years. Id. Plaintiff claims thatthisenlarged statute of limitations is
applicable and further asserts that the "EPA provides increased civil penalties for incidents of'willful' or
'repeated' violations," citing "29U.S.C. § 216(B)(2)." (F.A.C. ^ 131.) The Court notes that it made a
statement to this effect in its previous Memorandum Opinion dismissing Plaintiffs initial case. See
Spencer v. Va. St. Univ., Civil Action No. 3:16cv331,2016 WL 7026442, at *4(E.D. Va. Nov. 30, 2016).
However, this appears to have been an inadvertent error as the Court has been unable to locate this
statutory provision or any other similar to it.
11

discriminated against her on the basis of her sex, in violation of the EPA.

The EPA prohibits employers from discriminating on the basis of sex "by paying

wages to employees ... at a rate less than the rate at which he pays wages to employees

of the opposite sex ... for equal work onjobs the performance of which requires equal
skill, effort, and responsibility, and which are performed under similar working
conditions." 29 U.S.C. § 206(d)(1).

To establish a plausible claim of wage discrimination under the EPA, a plaintiff
bears the burden of showing: "(1) that her employer has paid different wages to

employees of opposite sexes; (2) that said employees hold jobs that require equal skill,
effort, and responsibility; and (3) that such jobs are performed under similar working

conditions." Brinkley v. Harbour Recreation Club, 180 F.3d 598, 613 (4th Cir. 1999)

(citing Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)), overruled on other

grounds by Desert Palace v. Costa, 539 U.S. 90 (2003). This disparity is typically shown
by a "factor-by-factor" comparison to a specific male comparator. Houck v. Va.
Polytechnic Inst. and State Univ., 10 F.3d 204, 206 (4th Cir. 1993).

A proper comparator for EPA purposes performs work "substantially equal" to
that of the plaintiff. Wheatley v. Wicomoco Cty., 390 F.3d 328, 332 (4th Cir. 2004)
(citations and internal quotation marks omitted). Though "application of the [EPA] is not
restricted to identical work," Brennan v. Prince William Hosp. corp., 503 F.2d 282, 291

(4th Cir. 1974), "the jobs involved should be virtually identical, that is ... very much
alike or closely related to each other." Wheatley, 390 F.3d at 333 (quotingBrennan v.

City Stores, Inc., 479 F.2d 235, 238 (5th Cir. 1973) (emphasis added and internal

12

quotation marks omitted)). This requires more than a mere showing that the plaintiff and
the putative comparator share the same job title. Wheatley, 390 F.3d at 332. The analysis
turns on whether the jobs to be compared share a "common core" of tasks. Hassman v.

Valley Motors, Inc., 790 F. Supp. 564, 567 (D. Md. 1992) (cited for this proposition with
approval in Dibble v. Regents ofUniv. ofMd, Sys., 1996 WL 350019, at *3 (4th Cir.
1996) (unpublished opinion)).

However, "jobs do not automatically involve equal effort or responsibility even if
they 'entail most of the same routine duties.'" Wheatley, 390 F.3d at 333 (quoting

Hodgson V. Fairmont Supply Co., 454 F.2d 490, 493 (4th Cir. 1972)). The Fourth Circuit
has expressly "decline[d] to hold that having a similar title plus similar generalized
responsibilities is equivalent to having equal skills and equal responsibilities." Id. at 334.
Jobs with a shared common core of tasks may be considered unequal if the more highly

paid job involves additional tasks requiring extra effort ortime or contributes economic
value "commensurate withthe pay differential." Hodgson, 454 F.2d at 493 (quoting

Hodgson V. Brookhaven Gen. Hosp., 436 F.2d 719, 725 (5th Cir. 1970)).
At the outset, the Court finds that Plaintiffhas pleaded facts sufficient to satisfy

the first and third factors required to plead a plausible claim for wage discrimination
under the EPA. For the first factor, Plaintiff has pleaded that at the time of their hiring,

Shackleford and Dial received starting salaries of $119,734 and $105,446, respectively,

in comparison to her own annual salary of $70,400. (F.A.C.

49, 102, 103; see also

supra note 5 (detailing the current pay discrepancies between Plaintiff and Dial).)
Moreover, Plaintiffhas pleaded that she, Shackleford, and Dial are professors at VSU and

13

teach in a classroom or lecture hall setting in an academic building, which the Court
deems sufficient under the third factor. (F.A.C. HI 26, 102, 103.)

Defendants, however, contend that Plaintiff has failed to plead facts sufficient to

satisfy the second factor. Defendants argue that neither Shackleford nor Dial are proper

comparators for EPA purposes because they teach different courses to different levels of
students in different departments than Plaintiff. (Mem. Supp. Mot. Dismiss 8-14, ECF

No. 25 {cWmgStragv. Bd. ofTrustees, Craven Comm. Coll, 55 F.3d 943, 950 (4th Cir.

1995) (citing

v. Um'v. ofMd., 778 F.2d 164, 167 (4th Cir. 1985)); Earl v. Norfolk

State Univ., Civil No. 2:13cvl48, 2014 WL 583972 (E.D. Va. Feb. 13, 2014); NoelBatiste V. Va. State Univ., Civil No. 3:12cv826, 2013 WL 499342 (E.D. Va. Feb. 7,
2013)).)

While it is possible that Defendants may be correct in their assertion that "courts

typically find that professors teaching in a department different from the one by which the
plaintiff was employed do not qualify as proper comparators," {Id. (first emphasis added,
second in original)), neither the EPA nor the pertinent case law in the Fourth Circuit

requires plaintiffs to plead comparators who are teaching in the same academic
department as a matter of law.

Moreover, when viewing Plaintiffs F.A.C. in a light most favorable to her, the

Court similarly cannot find on the limited record before it that teaching undergraduate
courses with a large number of students requires different skills, efforts, and

responsibilities than teaching primarily graduate and doctorate-level courses with fewer
students. Plaintiffhas affirmatively pleaded that "the task of teaching students in various

14

disciplines requires equivalent skill and responsibility" (F.A.C. ^ 32), and has provided
sufficient facts to infer that Shackleford and Dial are proper comparators under the EPA.

{See id. TIH 21, 25-29, 31-33, 50, 64, 77;

also F.A.C. Ex. B, ECF No. 19-3 (expert

regression analysis of the salaries of professors at VSU during the relevant time period).)
Therefore, the Court finds that Plaintiff has adequately pleaded a case for wage

discrimination underthe EPA and will deny Defendants' Motion to Dismiss as it pertains
to Count I.

ii. Retaliation under the EPA

In Count II of her F.A.C., Plaintiff alleges that Defendants unlawfully retaliated

against her in response to the Task Forcepresentation.

To properly state a retaliation claim under the EPA, a plaintiff is required to show:
(1) that she engaged in a protected activity; (2) that Defendants took some adverse
employment action against her; and (3) that a causal connection existed between the

protected activity and the adverse action.*^ Holland v. Washington Homes, Inc., 487 F.3d
208, 218 (4th Cir. 2007); Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)

(citing Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985)). "The
antiretaliation provision [of the EPA] seeks to secure [the] primary objective [of
" The Court notes Defendants' alternative argument that Plaintiffhas allegedly admitted that VSU's

wage differentials were "based ona[] factor other than sex." 29 U.S.C. § 206(d). Defendants contend
that by incorporating the report of B. Robert Kreiser, Ph.D. (F.A.C. Ex. A), Plaintiff has affirmatively
pleaded Dr. Kreiser's reference to an email between Provost Hill and Dr. Miller where they attempted to
justify the high salaries awarded to Shackleford and Dial. {Id. at 17.) Defendants assert thatthis
reference constitutes an admission that Defendants' justification is valid. The Court finds that this

argument is devoid of merit, however, because Plaintiff has merely adopted Dr. Kreiser's allegation that
Defendants made these claims, not that those claims are valid defenses on their own.

The Court observes that the same standard is utilized for assessing both EPA and Title VII retaliation
claims. See Kennedy v. Va. Polytechnic Inst. & State Univ., 781 F. Supp. 2d 297, 303 (W.D. Va. 2011);
Harrison v. Principi, Civil Action No. 3:03-1398, 2005 WL 4074516, at *7 (D. S.C. Aug. 31, 2005).
15

promoting a workplace where individuals are not discriminated against because of their
sex] bypreventing an employer from interfering (through retaliation) with an employee's
efforts to secure or advance enforcement of the Act's basic guarantees." Burlington

Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006).

For a plaintiff to establish that she engaged in a protected activity in satisfaction of
the first element, she must show that she "has filed any complaint or instituted or caused

to be instituted any proceeding under or related to" the EPA. 29 U.S.C. § 215(a)(3). The
Fourth Circuit has noted that protected activity "encompasses utilizing informal

grievance procedures as well as staging informal protests and voicing one's opinions in
order to bring attention to an employer's discriminatory activities." Laughlin v. Metro.
Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998).

After reviewing Plaintiffs F.A.C., the Court finds thatshe has pleaded facts
sufficient to satisfy the first element of the analysis by detailing her participation in the

Task Force during the Spring 2012 semester (F.A.C. 83), by stating that she filed a
formal EEOC charge of discrimination and retaliation on April 13, 2015 (/af. T| 111), and

by noting that she filed her initial EPA Complaint against VSU on May 22, 2015.'^ (Id. 1
112.) Any one of these actions could reasonably be construed as a protected activity
under the EPA.

The Court notes that Plaintiff also contends that her conversation with Board of Visitors member

Terone Green and the fact that she restated her claims of gender inequity at the time she requested a pay

raise both constitute additional protected acts under the EPA. Defendants disagree, arguing that Plaintiff
"cannotturn every adverse action into retaliation simply by reasserting the samecomplaint whenever she
requests anything from VSU." (Mem. in Support of Mot. to Dismiss 18.) While this is a point of
contention between the parties, the Court finds that it can adequately address the sufficiency of Plaintiff's
F.A.C. without resolving this issue at this stage of the litigation.

16

Turning to the second element, the Supreme Court has held that a materially

adverse employment action is one that "well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination." Id. (quoting Rochon v. Gonzales,
438 F.3d 1211,1219 (D.C. Cir. 2006) (citations and internal quotation marks omitted)).
Nevertheless, "[a]n employee's decision to report discriminatory behavior cannot

immunize that employee from those petty slights or minor annoyances that often take

place at work and that all employees experience." Id Courts must conduct a factspecific analysis in each case to determine whether an employer's actions would have
deterred a reasonable employee from seeking protection underthe EPA. See Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998) ("The real social impact of
workplace behavior often depends on a constellation of surrounding circumstances,

expectations, and relationships which are not ftilly captured by a simple recitation of the
words used or the physical acts performed."); see also Burlington Northern, 548 U.S. at

69 ("[A] legal standard that speaks in general terms rather than specific prohibited acts is
preferable, for an 'act that would be immaterial in some situations is material in others.'"

(quoting Washington v. Illinois Dept. ofRevenue, 420 F.3d 658, 661 (7th Cir. 2005)).
So, for example, "[a] schedule change in an employee's work schedule may make
little difference to many workers, but may matter enormously to a young mother with

school-age children." Burlington Northern, 548 U.S. at 69 (citing Washington, 420 F.3d
at 662 (finding that a "flex-time" schedule was critical to an employee with a disabled

child)). Similarly, "[a] supervisor's reftisal to invite an employee to lunch is normally
trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a

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weekly training lunch that contributes significantly to the employee's professional
advancement mightwell deter a reasonable employee from complaining about
discrimination." Id.

At a minimum, the Court finds that denying Plaintiffs requested salary increase is
sufficient to constitute an adverse employment action. Beyond this finding, the Court

determines that, based on the detailed allegations in Plaintiffs amplified F.A.C., several
of Defendants' other actions "might well have dissuaded a reasonable worker from

making or supporting a charge of discrimination." Id. at 68 (citations and quotation
marks omitted). These actions include, but are not limited to: (1) intentionally delaying

in signing paperwork on two occasions, which prevented Plaintiff from being paid in a

timely manner (F.A.C.

91-92); (2) refusing to assist Plaintiff while she faced a formal

discrimination complaint that Defendants encouraged a student to file {id.

97-98); (3)

making veiled threats to Plaintiff referencing an antagonistic view taken by the VSU
Administration against her{id. HH 96, 101; F.A.C. Ex. A, at 22); (4) refusing to address
Plaintiffs concerns regarding a troubled student who was stalking her (F.A.C. 1116);
and (5) removing Plaintifffrom her role of giving the Freshman Orientation speech
without explanation. {Id. H116.) Each of these events couldrationally be seen as more

than just "petty slights or minor annoyances that often take place at work and that all

employees experience." Burlington Northern, 548 U.S. at 68. Therefore, the Court finds
that Plaintiff has adequately pleaded facts that are sufficient to satisfy the second element
of an EPA retaliation claim.

In orderto satisfy the third and final element on an EPA retaliation claim, a

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plaintiff must plausibly allege that heremployer took a materially adverse employment
action ''because the plaintiffengaged in a protected activity." Dowe v. Total Action

Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (emphasis in

original). Stated succinctly, a plaintiff must plead some rational connection between the
first and second elements.

In the absence of direct evidence, temporal proximity between the protected

activity and the adverse employment action can give rise to an inference of causation.
See Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007). The Fourth Circuit has

suggested that a two-and-a-half month gap between the protected activity and the adverse
employment action may be sufficient to weaken an inference of causation based on

temporal proximity alone. Kingv, Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003); see
also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) ("The cases that accept

mere temporal proximity between an employer's knowledge of protected activity and an
adverse employment action as sufficient evidence of causality to establish a prima facie
case uniformly hold that the temporal proximity must be very close."' (internal quotation
marks and citation omitted)); Dowe, 145 F.3d at 657 ("A lengthy time lapse between the

employer becoming aware of the protected activity and the alleged adverse employment
action ... negates any inference that a causal connection exists between the two.").
However, in the absence of close temporal proximity, other evidence of "retaliatory

animus" from the intervening period may be used to prove causation. Lettieri, 478 F.3d
at 650.

Though it appears to the Courtthat Plaintiffhas pleaded multiple protected

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activities and potentially materially adverse employment actions, the parties have

primarily focused their briefing on whether she has adequately pleaded a causal
connection between the Task Force presentation and VSU's denial of her request for a

pay increase. Since there was a gap of nearly two years between these specific events,
the Court finds that Plaintiff cannot rest her case on temporal proximity. See King, 328

F.3d at 151 n.5. Nevertheless, the Court determines that Plaintiff has sufficiently pleaded

intervening events which regularly occurred between her Task Force presentation and
VSU's denial of her request for a pay increase that could reasonably be viewed as

exhibiting retaliatory animus on the part of Defendants. See Lettieri, 478F.3d at 650-51.
As described above, these detailed factual allegations are sufficient for the Court to

plausibly infer a connection between the first two elements ofher EPA retaliation claim.
Therefore, the Court concludes that Plaintiffhas adequately pleaded all three
elements for a retaliation claim under the EPA and will deny Defendants' Motion to
Dismiss as it pertains to Count II.
IV. CONCLUSION

Based on the foregoing, Defendants' Mofion to Dismiss (ECF No. 24) will be
denied.

An appropriate Orderwill accompany this Memorandum Opinion.

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The clerk is directed to send a copy of this Memorandum Opinion and the
accompanying Order to all counsel of record.

Henry E. Hudson
United States District Judge
Date:
» POtl
Richmond, Virginia

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