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Former school supervisor's can sue for equal pay.

Byline: Virginia Lawyers Weekly

Former school supervisor established a prima facie case of equal pay discrimination, when compared to her predecessor and successor, requiring jury to assess the School Board's reasons for pay disparity.


Debra Colley was employed by the Dickenson County School Board from 2007 to 2015, as one of the small group of supervisors in the school division's Central Office. In April of 2015 Colley announced her intention to retire. Until that time, she believed that all Central Office supervisors received "around the same rate of pay." Shortly thereafter, after learning to the contrary, she complained to the School Board. Certain members of the Board expressed interest in correcting any disparity, and the Board's staff developed options for a financial settlement with Colley, which were discussed with her. Eventually, however, the Board took no action on Colley's request and she voluntarily retired as scheduled on July 31, 2015. This lawsuit was thereafter filed on March 7, 2017.

In her amended complaint, Colley sues the Board and all of its five members Susan Mullins, Rocky Barton, John Skeen, Don Raines, and R.E. Nickles as well as the division superintendent, Haydee Robinson, in their individual capacities. She asserts four separate causes of action, all related to a disparity in her salary and the failure of the School Board to correct that disparity. Her law suit charges that the pay disparity resulted from the gender-motivated salaries of three male Central Office supervisors, Burl Mooney, Mark Mullins, and Mike Setser, as well as those of her male predecessor, Jimmy Smith, and her male replacement, Tony Robinson. The defendants have now filed motions for summary judgment.

Equal Pay Act claim

In order to establish a prima facie case, Colley must demonstrate that the School Board paid a higher wage to a male "for equal work on jobs requiring equal skill, effort, and responsibility, which jobs . . . all are performed under similar working conditions." The School Board contends that it is entitled to summary judgment because Colley and male Central Office supervisors Mooney, Setser, and Mullins did not perform equal work.

I find based upon the summary judgment record that Colley has failed to show sufficient evidence that she performed equal work compared to Mooney, Setser, or Mullins and thus has not established a prima facie case under the EPA as a matter of law as to those alleged comparables.

Colley also argues that she has established a prima facie case under the EPA because she was paid less than her male predecessor, Jimmy Smith. In addition to her predecessor, an EPA plaintiff may use her successor as a comparable. After Colley retired, she was replaced in the same job by a male, Tony Robinson, who received a starting annual salary of $74,699, higher than Colley's final salary of $71,300, after eight years in her position.

I do find that Colley has presented sufficient evidence to prove a prima facie case as to her predecessor Smith and her successor Robinson. The plaintiff performed equal work as those persons but was paid a lesser salary. The burden of proof being thus shifted to the School Board to prove one of the statutory defenses, I find that there are genuine issues of material fact as to those defenses precluding summary judgment for the School Board. The jury must decide whether the alleged seniority system operated to insulate the School Board from paying Colley a comparable amount to that received by Smith for performing the same job that she was hired to perform. As to Colley's successor, the jury must determine whether Robinson's prior salary justified paying him a starting salary not comparable to that which Colley received when she started the same job.

Title IX claim

Colley asserts a discrimination claim against the School Board under Title IX of the Educational Amendments of 1972. For the reasons as explained in connection with the plaintiff's EPA claim, I find that Colley has shown a successful prima facie case of discrimination and has rebutted the School Board's articulated reason for disparate treatment. Accordingly, I find there are issues of genuine material fact as to whether the School Board engaged in unlawful gender discrimination with respect to Colley's

salary. Accordingly, I will deny summary judgment as to this claim.

Equal Protection claim

Colley also alleges a constitutional claim against all of the defendants under 42 U.S.C. 1983, based upon the Equal Protection Clause of the Fourteenth Amendment. Persons sued in their individual capacity under 1983 are clothed with qualified immunity.

I find that the individual defendants the Board members and Superintendent Robinson are entitled to qualified immunity and judgment must be entered in their favor. While there is a strong argument that no constitutional right has been shown by the plaintiff, I find that any such constitutional right, even if proved, was not clearly established under the specific factual circumstances of this case.

I do not find that any pre-existing precedent made apparent to these defendants that their conduct violated constitutional law. The undisputed facts are that the Board members did not know of the disparity in salaries, although they annually approved a total figure for those salaries. Superintendent Robinson understood that salaries were based on the length of service, be it service in the Central Office or with the school system. The plaintiff never brought to the defendants' attention that she was the victim of gender discrimination. When she asked for a raise from Superintendent Robinson, it was based on her concern that some school principals were making more money than the supervisors in the Central Office.

The School Board as a governmental unit is also sued by Colley under 1983, based upon the claimed violation of the Equal Protection Clause. To prevail on a municipal liability claim under 1983, a plaintiff "must point to a persistent and widespread practice of municipal officials, the duration and frequent of which indicate that policymakers (1) had actual or constructive knowledge of the conduct, and (2) failed to correct it due to their deliberate indifference."

While Colley asserts in her brief that the Dickenson County Public Schools "had a culture of protecting male employees and rewarding them with supervisor positions and generous salaries," this conclusory allegation is not supported by the facts of record. Of the five educators serving in the Central Office during Colley's employment, three were men and two were women and the chief administrator of the school system, Superintendent Robinson, was a woman.

At the end, while there were serious inconsistencies in the system as I have previously described, they are not the requisite "widespread or flagrant violations" as to give rise to municipal liability under 1983. Accordingly, I find that Colley has failed to show a genuine issue of material fact as to the School Board's liability under 1983. The defendants' motions for summary judgment as to the 1983 claim will be granted.

Breach of contract claim

Colley asserts a pendant Virginia common law breach of contract claim, alleging that the School Board breached an agreement to compensate her for her monetary loss on account of her salary disparity. Colley contends that the Board, through its lawyer, made a binding contractual offer to compensate her and that she "accepted the range of compensation offered for the underpayment." In its Motion for Summary Judgment, the School Board asserts that the undisputed evidence establishes that no binding offer was ever made to Colley.

It is clear from Colley's own testimony that she knew that no definite offer had been made and any such offer required a decision by the Board. The Board may have decided to offer an amount below the range between the two options being considered, although "closer" to the lower number. The Board may have included legal language in the expected written agreement that may have been unacceptable to Colley. I find that the School Board is entitled to judgment as a matter of law on its contract claim.

Statute of limitations

The School Board argues that any damages occasioned by its alleged violations of the EPA or Title IX are limited by the period of limitations applicable to those statutes and seeks summary judgment in its favor as to any such excess damages. The School Board does not contend that either of Colley's remaining causes of action is barred by the statute of limitations, but only that she cannot recover any damages prior to two years before the filing of her action on March 7, 2017, or at most, three years prior thereto if she proves a willful violation of the EPA. In other words, the School Board concedes that the lawsuit was timely filed, but that the applicable statutes of limitation constrain the extent of any damages awarded.

I agree with the School Board that in an employment action involving an alleged continuous and systemic violation, such as here, the statute of limitations constrains the plaintiff from seeking compensatory damages incurred beyond the reach of that period. I will grant the School Board's motion, limiting the extent of damages recoverable.

Motion for summary judgment granted in part, denied in part.

Colley v. Dickinson County School Bd., Case No. 17-cv-00003, Sept. 6, 2018. WDVA at Big Stone Gap (Jones). VLW No. 018-3-375, 28 pp.

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Title Annotation:Colley v. Dickinson County School Board, U.S. District Court for the Western District of Virginia
Publication:Virginia Lawyers Weekly
Date:Sep 23, 2018
Previous Article:Plaintiff could nonsuit after defendant's motion to dismiss.
Next Article:Plaintiff's claims barred by statute of limitations.

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