George Washington University v. Violand

• Decision Date: 20 September 2007
• Docket Number: No. 04-CV-1237.,04-CV-1237.
• Parties: The GEORGE WASHINGTON UNIVERSITY, Appellant, v. Laura VIOLAND, Appellee.
• Court: D.C. Court of Appeals

932 A.2d 1109

The GEORGE WASHINGTON UNIVERSITY, Appellant, v. Laura VIOLAND, Appellee.

No. 04-CV-1237.

District of Columbia Court of Appeals.

Argued January 19, 2006.

Decided September 20, 2007.

Andrew H. Baida, pro hac vice, with whom Karen A. Khan and Timothy W. Romberger were on the brief, Washington, for appellant.

Robert L. Bell, Washington, for appellee.

Before REID and KRAMER, Associate Judges, and KING, Senior Judge.

REID, Associate Judge:

Appellant, The George Washington University ("GWU" or "the university"), appeals from the trial court's denial of its post-trial motions challenging a jury verdict in favor of appellee, Laura Violand, on her complaint alleging unequal pay because of her sex (female) (Appeal No. 04-CV-1237).¹ We affirm the judgment of the trial court.

FACTUAL SUMMARY

The record shows that Dr. Violand graduated from the University of Maryland in 1977, and began her employment with GWU in 1978 as a front desk clerk at the Registrar's Office. In the same year, she enrolled in graduate school at GWU while continuing to work there, received a Masters of Education degree in 1982, and in that same year enrolled in a doctoral program at GWU. GWU awarded her a Doctorate of Education degree in 1998; her dissertation focused on a case study of major alumni and non-alumni donors during one of GWU's capital campaigns.

Dr. Violand's work with GWU's Division of Alumni & Development commenced in 1982. She first worked on the alumni side of the Division and then became Donor Relations Manager on the development side in 1987. She moved to the position of Assistant to the Executive Director in the development office of the GWU Medical Center in 1988. She was promoted to Manager, Medical Center Donor Relations and Communications in 1994. After Jack Feldman was hired in late 1995 as Director of Development at a salary of $75,000.00, Dr. Violand reported to him for about three months. Some time around Summer 1996, the Associate Vice President of GWU (for Medical Center and Alumni Relations), Mary Campion, asked Dr. Violand "to help with going out to meet alumni and solicit gifts" for the Medical Center. Dr. Violand, whose salary was $38,000.00 at that time and later increased to $40,000.00 due to increments, reported to Ms. Campion, as did Mr. Feldman.

Dr. Violand traveled in the Metropolitan Washington area to solicit gifts and after approximately one year expanded her base to points "[a]cross the country." She not only made contacts in various phases (including initial contacts or "introductory moves" and "cultivation"), but also solicited donors, including major donors, that is those who "contributed $50,000 or more" to the university. She filed "contact reports" reflecting the different phases of her work with potential donors. Dr. Violand became Assistant Director of Medical Center Development in December 1997, but did not receive a salary increase.

In early 1998, Ms. Campion left and ultimately was replaced by Sol Margulies. Although Dr. Violand asked him for a salary increase, none was forthcoming, only cost of living increases. When Dr. John Grossman replaced Mr. Margulies in 2000, Dr. Violand also requested a salary increase from him, without success. And, she discovered in 2000, that personnel papers reflecting her position as Assistant Director of Medical Center Development had never been "officially routed through the personnel system," and she "was formally still manager, donor relations and communications." In 2001, Dr. Violand again did not receive a salary increase. On January 5, 2001, Dr. Grossman sent her a memorandum thanking her for her "efforts, ideas, and willingness to work as a supportive team member in the Office of Medical Center Development and Alumni Affairs," and informing her that her 2001 annual salary was $42,574.32. Dr. Violand sent an e-mail response to Dr. Grossman, with copies to other GWU officials, because she was "enraged, and disgusted, and hurt" about the amount of her paychecks even though she (a woman) was performing the same type of work as Dr. Feldman. Previously, Dr. Violand had sent a memorandum to Cynthia Richardson Crooks of the Equal Employment Activities office detailing her work from July 2000 to December 11, 2000, and including a listing of monies she had raised for GWU in that time period and in the prior fiscal year. Dr. Grossman supervised Dr. Violand, and Dr. Feldman until he left his position in June 2002. Furthermore, Dr. Violand continued to perform the same work, and she and Dr. Feldman "divided up the country" in terms of their fund-raising efforts.

Although Dr. Feldman began his employment with GWU in late 1995, as Director of Development for the Medical Center "at a salary of $75,000 maybe," and supervised Dr. Violand and other employees, he soon ceased his supervisory duties because of a substantial reduction in force. His title was changed to Director of Major Gifts and, according to him, everyone "whether ... a secretary or a director of Major Gifts or director of Pla[nned] Giving, . . . all reported to [Ms. Campion]" and her successors. Dr. Feldman traveled locally and to other parts of the country, made face-to-face contacts with potential donors (visitations and solicitations)—visited them, listened to them, talked with them, solicited money from them, and completed contact reports. In April 2001, after GWU's hospital was sold, Dr. Feldman left the Medical Center for a development position in the GWU library, at a salary in the low to mid-$90,000.00 range.

Before arriving at GWU in 1995, Dr. Feldman had earned degrees from Chicago Teachers College (B.A., 1964), DePaul University (M.A., 1969), and Miami University in Oxford, Ohio (Ph.D, 1972). He started his fund-raising experience in 1981 at Vanderbilt University where he was Director of Development in the School of Engineering. Later, he became Director of Development in 1983 for the College of Business Administration/School of Accounting at the University of Florida; Director of the Bayfront Center Foundation in St. Petersburg, Florida in 1985, Associate Director of Capital Support/Director of Major Gifts in 1988 at The College of William and Mary; and Director of Leadership Gifts at Hampden-Sydney College in Virginia.

Dr. Violand filed her complaint against GWU on August 6, 2001. She claimed unlawful sex discrimination and retaliation based on GWU's payment of her "comparator" (Dr. Feldman) at a grade 24 level compared to her salary at the grade 17 level (Count I); intentional infliction of emotional distress (Count II); and a violation of the District of Columbia Human Rights Act with respect to her compensation (Count III). GWU filed an answer to the complaint on August 26, 2001, responding generally to Dr. Violand's allegations, and asserting certain boilerplate affirmative defenses. Two days later, GWU filed a partial motion to dismiss Counts I and II of the complaint, contending that Counts I and III were "duplicitous" and that Count II was barred by the three-year statute of limitations pertaining to intentional infliction of emotional distress claims. Dr. Violand opposed the motion but, in an order filed on November 7, 2001, the Honorable Susan R. Winfield dismissed Count I, without prejudice, and Count II, with prejudice. Thereafter, the parties proceeded with discovery and depositions.

GWU filed a motion for summary judgment on May 8, 2002, and an amended (technical) motion on May 21, 2002, basically arguing that Dr. Violand could not meet her burden to establish a prima facie case of pay discrimination; no statute of limitations contention appeared in the motion. Dr. Violand opposed the motion, and on July 1, 2002, the Honorable Mary Ellen Abrecht denied summary judgment "because of disputed facts, especially facts concerning whether Plaintiff's fund raising work was equal to her comparator." The parties filed a joint pretrial statement on October 30, 2002. Under the section headed "Claims and/or Defenses," Dr. Violand set forth several, including: "Plaintiff was denied equal pay for equal work because of her sex in violation of the DCHRA." GWU stated simply: "Defendant denies each and every allegation asserted by Plaintiff."

Approximately one week before trial, GWU filed a Trial Brief in the Civil Actions Branch of the trial court, with a copy to the Honorable Melvin Wright. In a section titled "The Failure of the Continuing Violation Theory," GWU stated:

At trial, it is anticipated that Plaintiff may attempt to seek back pay and related damages dating as far back as 1995, when Jack Feldman was first hired as the Director of Development for the Medical Center. Such allegations, however, clearly fall outside the applicable one year statute of limitations applicable to claims arising under the District of Columbia Human Rights Act. . . .

GWU argued that the continuing violation theory could not be applied to this case.

The case proceeded to trial before the Honorable Herbert Dixon on March 3, 2003. In addition to Dr. Violand, the plaintiff's witnesses included Dr. Bernard Malloy, Dr. Violand's physician; Dr. Michael Worth, GWU's Vice President for Development and Alumni Affairs from 1983 to 2001; Dr. Feldman; Dr. John Franklin Williams, who served as GWU's Associate Vice President for Development and Alumni Relations and later Vice President for Health Affairs and Dean of the School of Medicine and Health Sciences prior to becoming Provost in January 2003; Dr. Grossman by deposition; and Dr. Joseph L. Tryon, an economist.

Among other duties, Dr. Worth reviewed and discussed contact reports prepared by development officers. He explained the "vocabulary of fund-raising" as used by GWU, such as "prospect" (someone believed to have "the capacity and some inclination to make a gift in the future"), "cultivation" ("developing a relationship with a potential donor"), "solicitation" ("asking for the gift at some eventual point"), and "stewardship" (...