Petition of the Month, July 2019:
Zoe Spencer v. Virginia State University
Unequal Pay Resulting from Prior Salary History

We are a smaller University community, and I guess most people that work there will tell you that word travels-and fast.  It was common knowledge on the campus that the two Administrators were not renewed and there was certainly a buzz that they would be moving to faculty ranks.  I, along with others, had heard that they had received nine month faculty contracts, and that they were receiving 9/12ths of their prior Administrator salaries. That is what prompted me to send my initial request for a salary adjustment based on the “purported” entry level salaries of the former Administrators.  During our opening conference in August, they were listed as Associate Professors in the Opening Conference program and had joined their respective departments. I then confirmed that they were, in fact, being paid $119,000.00 and $105,000.00 dollars per year respectively, which was 9/12ths of their prior salaries for their new positions as faculty. 

Initially, I was told by then Provost Weldon Hill that they were entitled to “retreat rights” at 9/12ths their prior salaries because they were Administrators and it would be difficult to attract Administrators with no job security.  However, I knew that binding University policy specifically established that Administrators were NOT entitled to de facto tenure, hence retreat rights, and served the President in an “at will” capacity.  Further, there were other Administrators who were “terminated” or “not renewed” who did not receive the benefit of retreating to faculty positions.  Further, I knew that the rationale was not true because retreat rights are reserved for faculty who advance to Administrative ranks AFTER receiving tenure in a department, which entitles them to return.  The two males were not academic administrators, but were management administrators who did not advance through faculty ranks and had absolutely no real/tangible “full time” experience at faculty ranks. 

When I filed my lawsuit, they then switched the reason to I was not entitled to equal pay because they worked in different departments, which was the reason why we hired our expert witnesses to prove the departmental difference did not explain salary differentials as the average pay between/among the departments in question were comparable.

After the litigation began, in a brilliant act of sophistry, they skewed the issue and created an illusion that they were entitled to be paid more than me because of their prior unrelated experience as military personnel, because they were high ranking officials—Colonel and Lt. Colonel, and that they were former Administrators and I was not, and so I was not entitled to the advantage of the prior salary of a former Administrator.

I initially filed with 3 colleagues, which, of course, made it easier.  There was never any question for me and it really didn’t take much courage on my part….Although I have to admit, when I jumped in that ocean, I didn’t realize how deep it was...how choppy and how murky the waters would get.  Most female professors on campus who knew about the disparity were extremely bothered by the inequity.  But, the culture of retaliation on campus scared most.  For me, it was a clear matter of the “good ole boy network at work to the detriment of the many women who worked our asses off to get a Ph.D. and EARN our tenure and promotion through a very rigorous process, and we were already under and disparately paid and promoted.  And for me, it wasn’t like a one, two, or even a ten thousand dollar disparity, we were talking about disparities of $35-50,000.00 dollars.  It doesn’t get more inequitable than that. 

I think to me, it was like a slap in the face to us all.  But, I also felt like it was the first step to a precedent if we did not challenge it-a precedent that I certainly did not want them to establish.  So, the decision was easy…It is the process that has been hard.

I have faced retaliation that would make even the strongest break. When the former Administration learned of my lawsuit, and even before, they doubled down on me. There are situations that have occurred and are still occurring that I did not include in my petition and kind of got diluted as we continued to lose.  Most of my colleagues are supportive, but they are supportive in private.  The administration has changed since my lawsuit, and the current administration is not named; but there is still tension.  There is definitely still tension.  I think there is always fear that those who fight will set a precedent of resistance for others. 

It’s sad, but when you sue, you become the enemy in a sense.  Like you are betraying your institution or your employer. That is an easy narrative.  But, what it says is that you are not supposed to fight for equity, challenge discrimination. But, where would we be if noone in history challenged discrimination, inequality, inequity?

So………..

I would argue that the ambiguity of the “catchall exception” that is Section (d), “any other factor other than sex,” has become problematic only because employers want to exploit it as the “out clause”---the “escape hatch” by citing it, referencing it, and/or arguing it out of context- and then creating legal sophistry around it.  Those courts, jurisdictions, states that wish to honor the Equal Pay Act and Corning for the intent and purpose for which the EPA was established, that is to reward equal work with equal pay regardless of gender will read it in context-engage and respect the canons of nocitur a sociis and ejusdem generis.  Those that do not will isolate it from the language and intent of the EPA and exploit its generality and ambiguity in order to circumvent liability for practices that could otherwise be discriminatory.

I mean, to isolate the catchall exception, to allow it to act independent of its context renders the entire Equal Pay Act useless.  I think the question is did Congress enact the EPA, set forth specific language, and then provide a “catchall exception” that allows “any other factor other than sex” without context or limitation.  I don’t think so.  I think they were all wise enough to understand that there are clever ways to use factors that do not reference sex, but are still rooted in historic disparate and discriminatory inequities.  This is affirmed when the legislative history and the process of developing the language of the EPA is analyzed.  There is a deliberateness and intentionality in the language that cannot be ignored.

But, I’m no attorney.  So resolving this ambiguity is the question and issue that I am asking the Supreme Court to address

I state unapologetically that the Fourth Circuit opinion did not demonstrate that the panel had reviewed the entire record.   If one were to compare the Fourth Circuit opinion with the University’s response to the appeal, they are identical.  I found the opinion to be highly general and in many instances hypothetical.  The deposition testimonies of all parties, particularly the deposition of the decision maker, Provost Hill, establishes Hill: used a simple arithmetic calculation of their prior salaries to establish their entry level salaries as professors; knew that neither male had prior full time experience; did not anticipate that they would be performing any more work than other professors, knew that departmental difference did not influence his prior salary method; did not consider their experience in placing them in their departments; and knew that no 9/12ths police existed in the University but misrepresented that fact to the Board of Visitors. 

Therefore, the opinion that I did not raise any genuine issues of material fact simply does not stand against the vast issues and disputes that were raised. 

But most importantly, I am clear that if the Court must follow the guidance of Corning, the Courts got the comparison wrong.   I questioned whether the District Court in particular erroneously assumed that the comparators were former academicians before becoming Administrators and were “returning” to faculty positions, because the University erroneously cites distinguishable case law, i.e. Smith v. Virginia Commonwealth University, which could lead to that assumption, or if they just erroneously opined that the Court could subjectively assign a higher value to the males’ former roles as Administrators to make a determination of their value as Associate Professors, as a matter of law. In any event, I believe the comparison is erroneous.  The comparators were NOT tenured faculty members who brought former faculty experience and Administrator experience back to the role of Associate Professor as in case law that addresses the issue.  They were entry level professors who had no prior experience as faculty but were paid significantly higher salaries than all of the nine month female faculty members at VSU regardless of rank and they were assigned to an advanced rank that required each of us to undergo a rigorous tenure and promotion process based on their former roles and prior salaries.  

Thus, the questions that are raised in the petition are aimed at asking the Supreme Court for guidance on whether prior salary is a factor other than sex and if so, whether prior salary must be related to the standards established under the EPA or can it stand alone under the “catchall exception?”

The larger conflict is whether prior salary constitutes “any other factor other than sex.”  Specifically, where prior salary is not related to the merit, seniority, or quantity or quality of production as established under the EPA. Specifically though, Corning makes clear that differentials in pay must be based on “bonafide job evaluation plans” or a “bonafide job classification program” that does not discriminate on the basis of sex.  So, the question that is raised is, does a simple arithmetic calculation of a prior salary from an unrelated job constitute a bonafide job evaluation plan or a bonafide job classification program?  The answer is no.  Thus, when one considers the vast case law in higher education that defines the “bonafide job classification and evaluation plans” for professors, case law establishes  teaching, research, service, and tenure as the evaluation plan for professors.  The comparators had no teaching, research, or service in academia and neither were tenured. 

Thus, the canons of nocitur a sociis apply to whether prior salary would constitute a factor other than sex, and/or whether it can be excluded as a discriminatory factor, as a matter of law, when it is not based on a bonafide job evaluation plan as established in Corning or related to the other three statutory exceptions under the EPA.

Yovino raised two questions.  The question of prior salary and whether the Honorable Judge Reinhardt’s majority vote was valid because he transitioned (passed away) before the decision was filed.  The Supreme Court ruled that a deceased judge’s vote does not count if he transitions before the decision is filed.  The SCOTUS held that because a judge has until the filing to change his/her mind, a decision that is not filed is not final.  Therefore, because the decision was not filed and his vote constituted the majority, Judge Reinhardt’s death ended his term before the decision was final and his vote does count.  “A judge serves for lifetime, not for an eternity.”  This per curiam ruling overturned Rizo v.Yovino and left the question of prior salary unaddressed.

I am so humbled by the recognition, compliment, and support.  It really means so much to me. More than you know.  As I mentioned earlier, the decisions of the District Court and Fourth Circuit annihilated me.  Sitting in the Court during oral argument and listening to Judge Wilkerson trash my case, which for me felt like him trashing me, and not being able to speak for myself, was excruciating.   Honestly, I felt like I was stripped and disregarded at Virginia State, the District Court, and the Fourth Circuit.

But more importantly, I felt like bad case law, that would be cited to support discrimination against other women in my name, had been created.  I started this journey to fight for equity, not just for myself but for my colleagues.  And with each decision, it got bigger than me, bigger than VSU.  There is certainly gender inequity in higher education and across the board.  Women are paid 80 percent of what White males are paid and the percentage decreases based on the race and/or ethnicity of the woman, with Latinx women faring the worst.  I did NOT want my name to be used to continue to support gender discrimination, at least not without being able to say I fought until the end.

This was my way of raising the issue, asking the question, putting things BACK into a perspective that the University’s counsel so cleverly skewed in its favor.  My attorney was great, he provided an extraordinarily valuable foundation.  I wouldn’t be here without his work and commitment to my case. But an attorney needs to get paid and this long haul broke me. But most importantly, I needed to get my voice back.  I lost my voice. The process stripped my voice. I had to depend on others to express my passion not about me or my case, but about the larger issue of gender equity that I was raising.  So, I depended on my Higher Power’s guidance and took the greatest leap of faith of going pro se against ALL odds and advice.

I had taken a legal writing class in my Masters in Legal Studies class.  So, that gave me a foundation.  In preparation, I read Supreme Court Rules.  I studied the requirements for writing a Petition for a Writ of Certiorari. I studied countless petitions, both successful and unsuccessful ones.  I read articles on the components of writing a successful petition. I went to the actual Eighty Eighth Congressional Session minutes, the Renhquists Courts Canons of Statutory Construction. And most importantly I scrubbed case law, namely Corning, Washington v. Gunther, Reeves v. Sanderson, Anderson v. Liberty Lobby, and the plethora of authoritative and persuasive case law in higher education, EPA, and Title VII.  I had already read everything pertaining to my case, in depth, dozens of times, so I knew what was in the record.  I knew the EPA and Title VII and EEOC regulations before I filed my lawsuit.  So, I knew that I had references to the record that would support the petition. But, this is going to sound crazy to some in a profession that is so concrete and logical, most importantly, I prayed and asked for a spiritual guidance from those gone before A LOT.  I mean A LOT.

I ate, lived, and dreamed cert. pet. and the answers, the direction came.  I read, edited, read, edited, at least a hundred times…and out of preparation and prayer, what we filed was the final result.

To my Sisters-women of all races, classes, nationalities, religions- who dare to fight, I say, be brave…Don’t be afraid to speak, be a voice to the voiceless, be your own voice.  Be wise, be strategic; but, also be prepared for the journey.  Don’t be afraid to take calculated risks.  When people say no, fight on.  Don’t let the process break you, even though you will take financial, familial, emotional hits.   Know that when you fight for a cause greater than you, even if you lose in court, the fight provides a blueprint for those who come after. There is something higher that will guide and protect you. Fight!  If nothing else, I hope the body of work that I have amassed in this fight against gender inequity will serve as a blue print for others to come.  Just like those who came before served as a blue print for me.  Whether I win or lose at this highest level, I know that I left a trail as I fought until the end.  Win or lose, there is a blue print.  I hope that through the action, I have won one for the team.

I can’t say enough!  From moment one, I knew this was going to be my home.  From the first conversation, to the critique of the record, the estimate, and cost which was so fair considering the amount of work it entailed- to the ongoing communication throughout the process, and especially THE EXPERTISE of the Editor has been amazing.  It relieved and continues to relieve so much stress and pressure knowing that I have a team of experts to handle the extremely tedious and specific work of making sure that the petition and all subsequent documents conform to Supreme Court standards.  If anyone reads this, it means you know how specific the rules are.

Especially going pro se, I wanted the law clerks to take my work seriously-to actually read it.  So, I know that presentation is everything.  Most importantly I knew that if it did not conform to standard, it could be rejected.  So, I was seriously scared because I am not an attorney.  There are so many rules. 

So, it was great to just be able to focus on the content, and “let Supreme Court Press handle the rest.”  It shaved weeks off my turnaround time and thus allowed me to write and edit a more thorough petition.  It was truly a flawless transaction with an exceptional output.  I can’t say thank you all enough!